In re Estate of Sowande

[Cite as In re Estate of Sowande, 2014-Ohio-5384.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
PORTAGE COUNTY, OHIO
IN RE: THE ESTATE OF OLUFELA : OPINION
OBFUNMILAYO SOWANDE a.k.a. FELA
SOWANDE (DECEASED) :
CASE NO. 2014-P-0018
:
Appeal from the Portage County Court of Common Pleas, Probate Division, Case No.
1987 ES 36785.
Judgment: Affirmed.
Leanne A. Sowande, pro se, 13500 Pearl Road, Suite 139 #208, Strongsville, OH
44136 (Appellant).
Reuben J. Sheperd, Reuben J. Sheperd Attorney at Law, 11510 Buckeye Road,
Cleveland, OH 44104 (For Appellee-David L. Moore).
CYNTHIA WESTCOTT RICE, J.
{¶1} Appellant, Leanne A. Sowande, appearing pro se, appeals the judgment
of the Portage County Court of Common Pleas, Probate Division, denying her motion to
vacate the order settling the fiduciary account filed in the estate of her late father, which
was closed 26 years ago in 1988. At issue is whether the trial court’s finding that the
executrix did not commit fraud in administering the estate was supported by competent,
credible evidence. For the reasons that follow, we affirm.
{¶2} On March 13, 1987, Olufela Obfunmilayo Sowande, a.k.a. Fela Sowande,
passed away while residing in Portage County, Ohio. On May 13, 1987, decedent’s
wife, Eleanor McKinley Sowande, filed the decedent’s will, an application to probate the
will, and an application for authority to administer the estate. The court admitted the will
to probate; appointed Mrs. Sowande executrix; and ordered her to provide notice that
the will was offered to probate.
{¶3} In May 1987, Mrs. Sowande filed an affidavit stating that the decedent had
previously been married and had two daughters from the prior marriage who are now
married and emancipated, but that she did not know their married names or present
whereabouts.
{¶4} Pursuant to this notice, on May 21, 1987, the trial court vacated the
admission of the will to probate and the appointment of Mrs. Sowande as executrix, and
ordered her to provide notice by publication to decedent’s unknown heirs of the offering
of the will to probate. Such notice was provided in accord with Ohio law, and stated that
a hearing would be held on July 6, 1987 on Mrs. Sowande’s application to admit the will
to probate. Pursuant to this legal notice and without objection, the will was re-admitted
to probate and Mrs. Sowande was re-appointed executrix on November 9, 1987. Notice
of her appointment was duly published.
{¶5} In the months that followed, Mrs. Sowande settled the estate. Mr.
Sowande’s will, dated November 23, 1982, expressly excluded his two daughters from
receiving any assets from his estate and named his wife his sole beneficiary. The final
account of the estate was filed on February 5, 1988. All assets were properly
accounted for. The trial court approved the final account on March 24, 1988.
Thereafter, the estate was closed and the fiduciary was discharged.
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{¶6} Some 12 years later, in 2000, Mrs. Sowande passed away. Her estate
was administered by her son and the decedent’s step-son, appellee, David L. Moore, in
the state of Montana. Mr. Moore was the sole beneficiary under his mother’s will. Her
estate is now closed.
{¶7} Nearly 26 years after the estate of Fela Sowande was closed, on October
25, 2013, his daughter from a prior marriage, appellant, Leanne A. Sowande, who was
then 75 years old, filed a motion to reopen her late father’s estate and to appoint her to
administer his estate, which was supported by over 200 pages of documents. The
motion was filed under R.C. 2109.35(A), and was essentially a motion to vacate the
order settling the fiduciary account filed in the estate. Appellant alleged Mrs. Sowande
committed fraud in the administration of her father’s estate.
{¶8} The court held a conference on the motion on November 26, 2013.
Appellant appeared pro se and appellee appeared through his counsel. The court
stated it had reviewed appellant’s motion and its attachments.
{¶9} Appellant stated her father, Fela Sowande, was from Nigeria. He was a
music composer and moved to the United Kingdom when he was 37 years old. In 1968,
when he was in his 70s, he moved to the United States where he taught music at Kent
State University and resided in Portage County, Ohio.
{¶10} Appellant said her father had copyrights on some of his musical
compositions; tape recordings of other music he had written; ceremonial clothing; and
several family photos that were not listed as assets on the estate inventory. She does
not know their monetary value, but said their value was mostly “sentimental.” She said
she wanted to be appointed fiduciary of her father’s estate to answer questions she has
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regarding whether anything was “out of line” with regard to the administration of her
father’s estate. She said she filed her motion under R.C. 2109.35(A).
{¶11} Appellee’s counsel said that at the time of Mr. Sowande’s death, he had a
valid will. Proper notice was given and there was no fraud. He said that the executrix
died many years ago and thus is unable to defend against appellant’s baseless
accusations. He said that appellee, as his mother’s sole beneficiary, has pursued the
items at issue, but that he has been unable to determine if any of this property still
exists.
{¶12} The court set the matter for an evidentiary hearing on appellant’s motion
to vacate. The court gave appellant three months to retain counsel if she chose to do
so and to give her counsel sufficient time to prepare for the evidentiary hearing. The
court strongly urged appellant to retain counsel for the upcoming hearing.
{¶13} On February 26, 2014, the trial court held the evidentiary hearing. Once
again, appellant appeared pro se and appellee appeared through his counsel. The
court asked appellant to outline her evidence of Mrs. Sowande’s alleged fraud.
Appellant said she had two examples of the fraud. First, in Mrs. Sowande’s May 1987
affidavit for service by publication, she said she did not know the present whereabouts
of her husband’s two daughters. Appellant said this was a lie and a fraud because she
had talked to her father in 1985 and she told him where she lived. Appellant argued this
proved that Mrs. Sowande knew her address and should have given her notice of the
probate estate.
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{¶14} For her second example of Mrs. Sowande’s alleged fraud, appellant said
she does not understand why Mrs. Sowande did not include her father’s musical works
in his inventory.
{¶15} Appellant argued she could not have challenged her father’s will earlier
because she was not notified of her father’s probate case. However, materials
submitted with appellant’s motion to reopen show that she knew her father resided in
Portage County at the time of his death in March 1987. Further, appellant learned
about his death in July 1987, which was eight months before the court approved the
final account of his estate on March 24, 1988. Yet, appellant did nothing for the next 25
years to determine whether a probate estate had been opened for her father, and did
not file her motion to vacate until October 25, 2013.
{¶16} Appellee’s counsel said that no one knows where Fela Sowande’s musical
compositions and other items mentioned by appellant are located or where to pursue
them. Thus, he said there would be no point in reopening the estate to include them.
{¶17} The court said it would review again all of appellant’s filings before ruling
on her motion.
{¶18} On April 1, 2014, the court entered judgment denying appellant’s motion to
vacate. In support, the court made detailed findings of fact and conclusions of law. The
court stated it had considered the documents attached to appellant’s motion and found
no evidence of fraud.
{¶19} One week later, on April 7, 2014, appellant submitted a letter to the clerk
of the trial court, with the following attachments: (1) a letter requesting that all court
proceedings be transcribed; (2) a letter requesting findings of fact and conclusions of
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law in support of the court’s judgment; and (3) “Material Evidence RE: Challenge to
Alleged Marital Status of Principal Parties in This Case.”
{¶20} On April 8, 2014, the trial court signed a journal entry stating its April 1,
2014 judgment denying appellant’s motion to vacate was the court’s findings of fact and
conclusions of law.
{¶21} Appellant appeals the trial court’s April 1, 2014 judgment, asserting four
assignments of error. Her first assigned error alleges:
{¶22} “The trial court denied due process guaranteed by the 14th Amendment of
the United States Constitution to the Appellant Leanne A Sowande and the Appellant’s
sister Beverly F. Sowande (now deceased) by prejudicially excluding relevant evidence,
that the fiduciary’s failure to provide ‘meaningful notice’ at a ‘meaningful time’ to the
known and/or easily ascertainable address of the Appellant and the Appellants sister
Beverly F. Sowande (now deceased), pursuant to R.C. 2109.02, was a harmful,
deliberate, act of constructive fraud; and, that the trial court failed to provide ‘meaningful
notice at a meaningful time’ to the Appellant, that the relevant evidence of constructive
fraud had been excluded by the Court violating Fed. Rules of Evidence 401-402 and
Ohio Rules of Evidence 401-402.” (Sic throughout.)
{¶23} Before addressing the merits of this assigned error, we note that Leanne
A. Sowande is the sole appellant in this case and that her sister Beverly passed away in
2010. Thus, appellant cannot assert the alleged violation of Beverly’s rights in this
appeal. We therefore confine our analysis and holding to appellant’s appeal.
{¶24} Moreover, at the November 26, 2013 conference, appellant argued her
motion was based on R.C. 2109.35(A). That section provides:
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{¶25} 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:
{¶26} The order may be vacated for fraud, upon motion of any person
affected by the order * * *, if the motion is filed * * * within one year
after discovery of the existence of the fraud.
{¶27} “R.C. 2109.35(A) permits a motion to vacate to be filed within the year
after fraud is discovered.” Santillo v. Fenwick, 9th Dist. Summit No. 16801, 1995 Ohio
App. LEXIS 391, *6 (Feb. 1, 1995). The undisputed evidence shows that appellant did
not file her motion within the one-year time limit set forth in this statute. The documents
attached to appellant’s motion to vacate show that on February 9, 2012, appellant wrote
a letter to the trial court regarding her father’s estate. Thus, she was aware of the
existence of the estate by that date. Further, these documents show that on April 2,
2012, she wrote an e-mail stating she had a fraud claim regarding her father’s musical
works and that she was “taking steps to correct” this. Thus, appellant discovered her
alleged fraud claim at the latest by April 2, 2012, and had until April 2, 2013, to file her
motion to reopen, but did not file it until six months later on October 25, 2013. While
appellant’s motion to reopen was thus untimely by six months, appellee did not raise
this issue below and it is thus waived. State v. Awan, 22 Ohio St.3d 120,122 (1986).
{¶28} Turning now to the merits of appellant’s appeal, “‘R.C. 2109.35(A), which
provides that the settlement order of the probate court may be vacated upon the motion
of any person affected thereby, is based upon fraud. Fraud must be shown by clear
and convincing proof.’” Mathe v. Fowler, 13 Ohio App. 3d 273, 274-275 (11th
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Dist.1983), quoting In re Estate of Nyhuis, 65 Ohio Law. Abs. 65 (App.1952). “Cases
vacating settlement orders on the basis of fraud usually involve an intentional
misappropriation of funds by an administrator * * *.” Mathe, supra, at 275.
{¶29} In Mathe, this court held that a motion to vacate on the basis of fraud was
properly denied because the record did not contain clear and convincing proof that the
fiduciary intentionally omitted a tort claim from the account to defraud the tort claimants.
Mathe, supra, at 275. In Mathe, there was a dispute about the sufficiency of the tort
complaint and the claim was not liquidated when the account was filed. In those
circumstances, this court held there was no clear and convincing proof of fraud and thus
the trial court did not err in denying the motion to vacate by reason of fraud. Id. As a
result, under R.C. 2109.35(A), an allegation of fraud must be supported by clear and
convincing evidence that the fiduciary intentionally defrauded the court, a beneficiary,
and/or an estate claimant.
{¶30} Further, in Pengelly v. Thomas, 151 Ohio St. 51 (1949), the Supreme
Court of Ohio held that an executrix who innocently held herself out as the lawful wife of
the deceased had not committed fraud when, three years after approval of her final
account, it was discovered that the deceased had been previously married; that he was
never divorced; and that the executrix was thus not actually his wife. Id. at syllabus.
{¶31} Appellant’s first assigned error essentially challenges the court’s judgment
denying her motion to vacate as being against the manifest weight of the evidence. In a
civil case, an appellate court will not reverse a judgment as being against the weight of
the evidence as long as there is some competent, credible evidence supporting the
judgment. C.E. Morris Co. v. Foley Construction Co., 54 Ohio St. 2d 279 (1978),
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syllabus. Even if we do not agree with the trial court or might have found differently, we
cannot substitute our judgment for that of the trial court. We must give deference to the
trier of fact because it is best able to observe the witnesses and their demeanor and to
determine their credibility. Seasons Coal Co. v. Cleveland, 10 Ohio St. 3d 77, 80 (1984).
{¶32} Appellant argues Mrs. Sowande committed fraud by, first, stating in her
affidavit for service by publication that she did not know appellant’s present
whereabouts, and, second, by not including her father’s musical works and other items
in his inventory.
{¶33} For the first prong of appellant’s fraud argument, she contends that
because she gave her address to her father two years before his death, Mrs. Sowande
lied when she said in her affidavit that she did not know her present whereabouts.
However, the fact that appellant gave her address to her father two years before his
death does not mean her father gave her address to his wife. Without proof that Mrs.
Sowande actually knew appellant’s address when she executed her affidavit, there is no
clear and convincing evidence of fraud. Mathe, supra.
{¶34} Appellant alternatively argues that, even if Mrs. Sowande did not engage
in actual fraud, the evidence supported a finding of constructive fraud. Constructive
fraud is the breach of a duty, which, regardless of the existence of fraudulent intent, the
law declares fraudulent, because of its tendency to deceive others or violate a
confidence. Cohen v. Estate of Cohen, 23 Ohio St. 3d 90, 91 (1986). “Constructive fraud
often exists where the parties to a contract have a special confidential or fiduciary
relationship.” Id. at 92. However, in her motion to vacate, appellant alleged “deliberate
fraud” and never argued her claim was based on constructive fraud. Moreover, at both
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the conference and the evidentiary hearing, appellant never said her motion was based
on constructive fraud.
{¶35} It is well-established that an appellant may not assert a new theory for the
first time before an appellate court. Kalish v. Trans World Airlines, 50 Ohio St. 2d 73, 77
(1977). “Having determined the impropriety of the presentment of appellant’s
[argument], no discussion of its merits is warranted.” Id.
{¶36} In any event, because there was no evidence Mrs. Sowande breached a
contract with or violated a fiduciary duty owed to appellant, there was no evidence of
constructive fraud.
{¶37} For the second prong of appellant’s fraud argument, she contends the fact
that her father’s musical works, copyrights, audio tapes, ceremonial clothing, and
photos were not included on the inventory also proves Mrs. Sowande’s fraud. However,
appellant did not submit any evidence that Mrs. Sowande was aware of the existence of
any of these items. Without evidence that appellant knew about these items, there was
no clear and convincing evidence of fraud. Mathe, supra.
{¶38} We therefore hold the trial court’s finding that Ms. Sowande did not
engage in fraud was supported by competent, credible evidence and the court’s denial
of appellant’s motion to vacate was not against the manifest weight of the evidence.
{¶39} Appellant’s first assignment of error is overruled.
{¶40} Because appellant’s second, third, and fourth assigned errors are
interrelated, repetitive, and governed by the same legal principles, they are considered
together. They allege:
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{¶41} “[2.] The trial Court committed prejudicial error in (1) its failure to
acknowledge, consider, and admit into the record of the proceedings, Court certified
existing documentary evidence, and NEW, verifiable, documentary evidence, properly
submitted to the Court by the Appellant pursuant to Fed. Rules of Evidence 401-402
and Ohio Rules of Evidence 401-402; and, (2) the trial Court committed prejudicial error
in its failure to judicially notice, or otherwise lawfully notice the Appellant of any
deficiency, rejection, and/or exclusion of relevant evidentiary documents, by providing a
clear statement of cause, and method to cure any found deficiency, that would result in
the Court’s rejection, and/or exclusion of the properly submitted documentary evidence;
and, (3) in so doing the trial Court denied 14th Amendment procedural due process to
this Appellant.
{¶42} “[3.] The trial Court committed prejudicial error violating Fed. Rules of
Evidence 401-402 and Ohio Rules of Evidence 401-402. by wrongly excluding relevant
evidence of Obstruction of Justice, [violation of R.C. 2911, R.C. 2921.12; and 18 U.S.C.
Section 1001] by the fiduciary and Executrix Eleanor McKinney (Sowande) in her
knowing filing of false documents with the Court in the probate of 1987; and, the Court
committed prejudicial error violating Fed. Rules of Evidence 401-402 and Ohio Rules of
Evidence 401-402 in wrongly excluding relevant evidence of Obstruction of Justice,
[violation of R.C.2911, R.C. 2921.12;and 18 U.S.C. Section 1001] in the knowing filing
of false documents with a Federal Court, by the Appellee, David L. Moore, in 2012. The
trial Court’s prejudicial exclusion of the relevant evidence of Obstruction of Justice,
further denied 14th Amendment’s procedural due process to this Appellant.
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{¶43} “[4.] The trial Court committed prejudicial error [violating Fed. Rules of
Evidence 401-402] and denied the Appellant 14th Amendment due process in: (1)
wrongly excluding relevant evidence that supports the Appellant’s claims of fraud and
denial of due process articulated in the Motion to Reopen; and, (2) prejudicially
excluded relevant evidence without timely notification provided to the Appellant with
information as to cause(s) of the exclusion, and/or, timely information of the procedures
to cure deficiencies and prevent exclusion, and, (3) demonstrated prejudicial partiality
and bias in the Journal Entries which, rule entirely against the weight of the relevant,
substantial, clear, and compelling evidence of fraud submitted to the court by the
Appellant in 2013 and 2014; and (4) demonstrated partiality and bias in the misleading
language [no evidence was offered] in the Court’s Order overruling the Appellant’s
Motion to Reopen Case Number ES 1987 36785 pursuant to R.C. 2109.35(A).” (Sic
throughout.)
{¶44} Appellant argues that because the court found there was no evidence of
fraud on the part of the fiduciary, this means the court improperly excluded her
documents from the evidence. However, the court did not exclude any of her exhibits.
In fact, during the conference, the court stated it had considered the evidence appellant
had submitted with her motion to reopen. And, during the evidentiary hearing, the court
said it would again review all documents that appellant had filed before ruling on her
motion. Moreover, in its judgment, the court stated it had “considered the statements of
[appellant] and [appellee’s counsel]. The court also considered the filings of [appellant].”
Thus, the court did not exclude any of the documents submitted by appellant with her
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motion. The court simply found that none of these documents proved that Mrs.
Sowande committed fraud in administering her husband’s estate.
{¶45} Next, appellant argues that her post-judgment letter to the court asking for
findings of fact and conclusions of law regarding the court’s April 1, 2013 judgment
constituted a request for judicial notice of the documents she submitted. However, this
letter could not reasonably be construed as a request for judicial notice. Because
appellant never asked the court to take judicial notice, the court was not required to do
so. Evid.R. 201(D). Moreover, by not requesting judicial notice, any issue regarding the
taking of judicial notice is waived. Awan, supra, at 122.
{¶46} Next, appellant argues the trial court gave her leave to submit additional
evidence at the February 26, 2014 evidentiary hearing and that the documents she sent
to the court after final judgment was entered were submitted pursuant to such leave.
However, appellant either misstates or misconstrues the court’s comments. Appellant
did not request and the court did not grant her such leave. Instead, the court stated, not
at the February 26, 2014 evidentiary hearing, but, rather, during the November 26, 2013
conference, that the court would schedule the evidentiary hearing in 90 days on
February 26, 2014. The court said the purpose of setting the evidentiary hearing so far
in advance was to give any attorney appellant might retain an opportunity to prepare for
the evidentiary hearing and to review her motion to decide whether it needed to be
amended. Thus, contrary to appellant’s argument, the court did not give her leave to
amend her motion or to file additional documents, let alone after the court entered final
judgment on her motion.
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{¶47} Alternatively, appellant argues that Civ.R. 15(B) allows for the admission
of her post-judgment documents “to conform to the evidence.” However, in making this
argument, she misconstrues Civ.R. 15(B), which allows amendments to the pleadings to
conform to the evidence to reflect issues raised at trial. Contrary to appellant’s
argument, this rule does not allow a court to admit documents concerning issues that
were not tried, which were submitted to the court for the first time after trial and after the
court entered final judgment without leave of court.
{¶48} Next, appellant argues the trial court was required to give her notice of any
deficiencies or errors in the documents she submitted post-judgment so she could have
cured them. However, because appellant submitted the documents at issue after the
court entered final judgment, the case was closed and the court was not required to
address them or to explain to appellant why it did not address them. Appellant’s
decision to proceed pro se does not excuse her ignorance or misunderstanding of the
law. “‘While one has the right to represent himself or herself and one may proceed into
litigation as a pro se litigant, the pro se litigant is to be treated the same as one trained
in the law as far as the requirement to follow procedural law and adherence to court
rules. If the courts treat pro se litigants differently, the court begins to depart from its
duty of impartiality and prejudices the handling of the case as it relates to other litigants
represented by counsel.’” Craft v. Edwards, 11th Dist. Ashtabula No. 2007-A-0095,
2008-Ohio-4971, ¶41, quoting State v. Pryor, 10th Dist. Franklin No. 07-AP-90, 2007-
Ohio-4275, ¶9.
{¶49} Next, appellant claims her post-judgment documents were relevant
because they challenged the marital status of her father and Mrs. Sowande. However,
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aside from the fact that these documents were submitted post-judgment and without
leave of court, even if they were relevant for such purpose, without proof that Mrs.
Sowande knew about them or their contents, they would not have proved intentional
fraud. Pengelly, supra.
{¶50} Finally, appellant’s argument that the trial court engaged in the crime of
obstruction of justice by not considering her untimely-filed documents is without legal or
factual support and does not merit further discussion.
{¶51} Appellant’s second, third, and fourth assignments of error are overruled.
{¶52} For the reasons stated in this opinion, appellant’s assignments of error
lack merit and are overruled. It is the judgment and order of this court that the judgment
of the Portage County Court of Common Pleas, Probate Division, is affirmed.
THOMAS R. WRIGHT, J.,
COLLEEN MARY O’TOOLE, J.,
concur.
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