The opinion
[Cite as Daddario v. Rose, 2024-Ohio-5882.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
COLLEEN O. DADDARIO, et al. JUDGES:
Hon. John W. Wise, J.
Plaintiffs-Appellees Hon. W. Scott Gwin, P. J.
Hon. Andrew J. King, J.
-vs-
Case No. 2024 CA 00032
MARYBETH O'HEARN ROSE
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common
Pleas, Probate Division, Case No. 237211
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: December 16, 2024
APPEARANCES:
For Plaintiffs-Appellees For Defendant-Appellant
WILLIAM J. STAVOLE LAURA L. MILLS
H. WILLIAM BESETH III PIERCE C. WALKER
TUCKER ELLIS LLP MILLS, MILLS, FIELY
950 Main Street, Suie 1100 & LUCAS, LLC
Cleveland, Ohio 44113 101 Central Plaza South, Suite 1200
Canton, Ohio 44702
BRIAN C. LAYMAN
LAYMAN LAW GROUP, LLC
4881 Munson Street, NW, Suite 301
Canton, Ohio 44718
DAVID DINGWELL
200 Market Avenue North, Suite 300
Canton, Ohio 44702
Stark County, Case No. 2024 CA 00032 2
Wise, J.
{¶1} Appellant, Marybeth Rose O’Hearn, appeals the December 19, 2022
amended judgment entry of the Stark County Court of Common Pleas, Probate Division.
FACTS AND PROCEDURAL BACKGROUND
The O’Hearn Trusts
{¶2} Kathleen and Arthur O’Hearn lived in Stark County, Ohio and had four
children, Colleen, Timothy, Jeffrey and Marybeth. During their lives, they worked hard,
were successful in many businesses and owned A-1 Realty. They built and owned
commercial apartment buildings on the corner of Whipple and Munson in Canton, Ohio
known as the Whipple Avenue property. (Tr. I, 15). Their assets totaled over two million
dollars. (Tr. II, 237.)1
{¶3} Kathleen O’Hearn and Arthur O’Hearn each executed a trust on December
4, 1991. Their four children, Colleen, Timothy, Jeffrey and Marybeth were named as
remainder beneficiaries. Arthur died on February 25, 2011 and his wife, Kathleen,
became the successor trustee of his trust. Kathleen was also the trustee of her own trust.
{¶4} The four siblings were treated as equal beneficiaries by both Arthur and
Kathleen’s trusts with one exception. Arthur, prior to his death, executed an amendment
to his trust that provided that if Kathleen predeceased Arthur, then upon Arthur’s death,
the Edward Jones account would be distributed only to Marybeth.
1 The videoconference trial held on July 15, 2021 will be referred to as Tr. I and II ______
Stark County, Case No. 2024 CA 00032 3
{¶5} Kathleen’s daughter, Marybeth, was the only child still living in Stark County.
Timothy lived near Cleveland, Jeffrey lived in Cincinnati and Colleen lived in Chagrin
Falls.2
{¶6} On December 21, 2011, Kathleen amended her trust and appointed her
daughter, Marybeth as co-trustee of her trust and to serve as executrix of her estate.
Kathleen maintained the distribution of the trust remainder as equal to her four children
but added for her grandchildren to be provided for from the trust as each of her four
children deemed appropriate. “It is my desire that the named beneficiaries Jeffrey A.
O’Hearn, Timothy J. O’Hearn, Marybeth O’Hearn Rose, and Colleen A. Daddario provide
from their respective shares for distributions to my grandchildren, in such amounts as
they deem appropriate.”
{¶7} In short, both Arthur and Kathleen expressed their intention in their trusts
that all four of their children share equally in the wealth they had accumulated upon their
passing with exceptions as noted above for the grandchildren and Edward Jones account
to Marybeth.
Shelter Plan
{¶8} After Arthur’s death, Kathleen was diagnosed with Parkinson’s disease. As
a result, there was some talk of her admission to a skilled nursing or assisted living facility.
Two doctors suggested that she plan on residing in a nursing home. Kathleen signed a
contract with one, the Alsatian in Louisville, Ohio. But Kathleen had second thoughts.
2 Jeffrey O’Hearn died during litigation in this matter and his estate was substituted as a
plaintiff.
Stark County, Case No. 2024 CA 00032 4
{¶9} Kathleen wished to remain in her home, and her daughter Marybeth moved
in with her for a time and became her primary caretaker from 2013 until her death on April
9, 2018. Caretakers were hired to assist with Kathleen’s care, drive her to doctor’s
appointments, do her housekeeping, keep her company and ensure that she ate, as she
was becoming increasingly depressed after her husband’s death and her Parkinson’s
diagnosis became worse.
{¶10} Kathleen sought the advice of Margaret Kreiner, an attorney who held
herself out as an elder law and estate planning attorney. An appointment was made for
Kathleen to consult with Attorney Kreiner.
{¶11} Kathleen arrived at the office consultation with Marybeth and Todd Bosley,
Marybeth’s business partner. Attorney Kreiner had Kathleen fill out an intake sheet prior
to any conversation:
[KREINER]]: So normally when they come I have an intake sheet,
and one of the questions I ask them are what are your goals. And she
[Kathleen] came in and said to protect my assets and avoid probate. Tr. I,
190.
{¶12} Marybeth and Todd Bosley sat in on the office conference with Attorney
Kreiner and Kathleen.
{¶13} Attorney Kreiner made a list of all of Kathleen’s assets and noted that they
were substantial – almost 1.8 million - and that didn’t include the assets in her late
husband’s trust. Tr. 1, 191.
{¶14} Attorney Kreiner devised a plan to shelter Kathleen’s funds in the event she
entered a nursing home facility. The plan was detailed in a letter Attorney Kreiner sent to
Stark County, Case No. 2024 CA 00032 5
Kathleen dated April 18, 2012. Bosley and Marybeth were sent a copy. The plan included
the transfer of Kathleen’s assets into the name of Marybeth for the purpose of protecting
her assets and avoiding probate. The plan also included an update of a durable power
of attorney. Attorney Kreiner drafted a power of attorney and Kathleen signed it naming
Marybeth as her agent.
{¶15} Attorney Kreiner also drafted a Limited Warranty Deed which Kathleen
signed transferring the Barnhill residence to Marybeth. A transfer on death affidavit was
then prepared for Marybeth to sign naming Colleen as the sole transfer on death
beneficiary. Tr. I, 183. The documents were signed by Kathleen and Marybeth and
recorded with the Stark County Recorder. An oil and gas lease transfer was also
prepared transferring Kathleen’s interests to Marybeth.
{¶16} Attorney Kreiner prepared no other documents transferring assets from
Kathleen to Marybeth. Kathleen never asked Attorney Kreiner to change her trust. Tr. I,
182.
{¶17} Attorney Kreiner had no knowledge of the transfers of any other assets from
Kathleen, Kathleen’s trust or Arthur’s trust to Marybeth until April of 2021. Tr. I, 184.
{¶18} Attorney Kreiner saw Kathleen approximately four or five times. During
those meetings, she didn’t believe she advised her to file gift tax returns on any gifts to
Marybeth because she didn’t know she was “doing gifting.” Tr. I, 211. Attorney Kreiner
prepared no gift tax return for the Barnhill property transferred to Marybeth. Tr. I, 185.
{¶19} Following the death of Kathleen, Attorney Kreiner represented Marybeth in
certain probate court proceedings involving the administration of Kathleen’s estate. Tr. I,
229.
Stark County, Case No. 2024 CA 00032 6
Assets transferred to Marybeth’s name.
{¶20} Following the letter from Attorney Kreiner, certain assets belonging to
Kathleen were transferred to Marybeth’s name, including the following transfers.
1. PNC Bank account with funds in the amount of $54,068.65 held
jointly by Kathleen and Marybeth to solely in Marybeth’s name.
2. Huntington Bank accounts with funds in the amount of
$275,157.74 from Kathleen’s trust to solely in Marybeth’s name. Colleen
was listed as the transfer on death beneficiary until 2018 when Marybeth
changed the beneficiaries to her two daughters.
3. American Century Investments account with funds in the amount
of $25,151.72 from Arthur’s trust to solely into Marybeth’s name.
4. Real estate known as the Barnhill Property transferred by limited
warranty deed from Kathleen to Marybeth. Kathleen’s daughter, Colleen,
was listed as the transfer on death beneficiary. Following the death of
Kathleen, Marybeth sold the residence and retained the proceeds.
5. Whipple Road funds owned jointly in Arthur and Kathleen’s trust
for a mortgage payoff in the amount of $333,952.00 transferred directly to
an account solely in Marybeth’s name. This property had been sold to
Property Alliance Group (PAG), a real estate entity owned by Marybeth and
Todd Bosley prior to Kathleen’s death.
6. Edward Jones account with funds in the amount of $141,782.05
transferred by Kathleen to Marybeth.
Stark County, Case No. 2024 CA 00032 7
7. Mineral rights interest from Arthur’s Trust to Kathleen’s Trust; then
transferred from Kathleen’s Trust to Marybeth.
{¶21} The transfers took place over several months from 2012 to 2015 and were
in an amount in excess of one million dollars. Several documents and notes confirm that
Kathleen’s intent was to implement a shelter plan and maintain ownership and control of
the assets for her benefit and needs even after the transfers occurred. The exception
was the Edward Jones account which she wrote was intended for Marybeth and the PNC
account that Kathleen intended to gift to Marybeth for help she had given her.
August, 2013 Email from Marybeth to her siblings
{¶22} When a question was raised by one of Kathleen’s siblings regarding
Kathleen’s assets, Marybeth wrote the following email to all of her siblings, Colleen,
Jeffrey and Timothy:
Margaret Kreiner is a respected attorney who specializes in Elder
Law and Estate Planning. My objective was to preserve as much of her
estate as possible so that she could have the resources to live where she
wanted, (home) as long as it was safe, and perhaps have assets left over
for her to do what she desired (hair appointments, massages, gifts to
grandkids, etc.) and $ to will to children/grandchildren/Parkinsons
Research, whatever.
Kreiner advised a plan that moved Mom’s assets out of her name in
order to prevent the government/care agency/facility from taking all the
assets that belong to mom. Most of the money and the house have been
transferred out of Mom’s name and into my name. It has been a loooong,
Stark County, Case No. 2024 CA 00032 8
slow emotional process, as end of life issues are very, very hard for mom
to discuss.
Moving assets, for example, allows mom to access VA benefits to
help offset the expense of in-home care should the need arise. Every single
penny is accounted for and in the proper accounts to pass the scrutiny of
the State and anyone else.
Mom’s CPA is Tim Barta, of Smith, Barta and Co. on Hills and Dales
Rd. He has also been overseeing things to make sure they are done
properly. If I kick off before mom, all of mom’s assets have been made POD
to you 3, plus my estate, for my girls. Of course, that money is only to be
used for care of mom and no other purpose until she passes, any remaining
bills paid, then the balance divided among whomever/whatever she wishes.
The way it is set up, none of us should have to pay any money for
her to receive quality care, so don’t worry about that.
{¶23} (Pl.’s Trial Exh. 37)
{¶24} Following that detailed e-mail to Marybeth’s siblings, Jeffrey O’Hearn wrote
the following:
It seems to me that two questions are being asked.
At mom’s death:
Will the proceeds from Whipple Road be included in mom’s
estate/will?
Will the proceeds from the sale of mom’s house be included in mom’s
will and equitably distributed upon sale among the four of us?
Stark County, Case No. 2024 CA 00032 9
Love,
Jeff
Marybeth replied:
Yes and yes
Love,
Marybeth
{¶25} (Pl.’s Trial Exh. 37).
Kathleen’s death on April 9, 2018
{¶26} Kathleen died on April 9, 2018 survived by her four adult children and
grandchildren. Marybeth sold the Barnhill property that her mother lived in and retained
the assets. In June, 2018, two months after Kathleen died, Marybeth told her siblings, for
the first time, that she intended to keep all of the moneys transferred into her name. When
asked why she did not tell her siblings sooner that they would receive no moneys from
the trust moneys transferred to her name, she explained that it wasn’t her business to tell
them. “Mom said she was going to tell them.” Tr. I, 163. When the siblings were cleaning
out the Barnhill residence, Marybeth informed her siblings that the assets belonging to
Kathleen were her sole property; that their mother, Kathleen, had transferred the bulk of
her assets to her [Marybeth] as a gift.
[COLLEEN DADDARIO]: Saturday evening, it was just Jeff and
Beth and I left at Mom’s house, and we ordered a pizza. And I don’t
remember exact words, but basically, Jeff must have said something about,
you know, ‘So what’s happening with the house?’ And that’s when Marybeth
told us that she was keep—that the house was hers, she was keeping the
Stark County, Case No. 2024 CA 00032 10
house, and everything else that had been transferred she was keeping, and
that she still hadn’t submitted a bill to the estate for more money that she
felt she was owed for expenses . . .
And he [Jeff] said, ‘is it six figures?’ And she said ‘Yes.’
{¶27} Tr. I, 69.
{¶28} Colleen and Jeffrey were dumbfounded.
Court gets involved
{¶29} Various lawsuits ensued. On June 16, 2020, siblings Colleen, Timothy and
Jeffrey filed a complaint against Marybeth claiming fifteen separate counts including
constructive trust, unjust enrichment, conversion, accounting, breach of fiduciary duty,
fraud and removal of Trustee.
{¶30} Marybeth was removed as a trustee and fiduciary and David Dingwell, was
appointed successor fiduciary. He filed a suit against Marybeth claiming breach of
fiduciary duty, concealment of assets, accounting, and declaratory judgment.
{¶31} The lawsuits were consolidated by the probate court.
Bench trial held July 15, 2021
{¶32} Following discovery and various pre-trial motions and summary judgments,
a bench trial was held on July 15, 2021. Marybeth testified that her e-mail to her siblings
was a lie and that Kathleen had transferred the bulk of her assets to her as a gift. When
asked why she didn’t tell her siblings that her intention was to treat the transferred assets
as a “gift” to her, she explained:
[MILLS]: And I don’t know where it is, but somewhere in this
particular email you talk about all of her assets have been transferred?
Stark County, Case No. 2024 CA 00032 11
[MARYBETH]: Yeah.
[MILLS]: That wasn’t true?
[MARYBETH]: No, it wasn’t.
[MILLS]: Why did you tell them something that wasn’t true?
[MARYBETH]: I don’t know. I wanted them to just stop asking me
questions.
{¶33} Tr. II, 283.
Trial Court issued Judgment Entry on September 23, 2021.
{¶34} The trial court issued a judgment entry on September 23, 2021.
{¶35} The trial court found that five of the several transfers were not inter vivos
gifts totaling $867,813.07. The trial court further found that the PNC and Edward Jones
account transfers were valid gifts to Marybeth.
{¶36} The trial court also found in favor of Marybeth’s siblings on their fraud and
conversion claims, granted the request of Attorney Dingwell for declaratory judgment to
return the assets to the trusts, and denied the request for a constructive trust. The trial
court found in favor of Marybeth on the concealment claim. The court granted the
appellees’ motions for prejudgment interest and attorneys’ fees. The court awarded
$126,131.28 in pre-judgment interest to Attorney Dingwell.
{¶37} The moneys were placed in escrow pending appeal, and the issues of
attorneys’ fees and punitive damages were stayed.
Appellate Court ruling – Daddario I
{¶38} The appellant, Marybeth, filed an appeal with this court alleging four
assignments of error. Daddario v. Rose, 2022-Ohio-3537 (5th Dist.). This Court denied
Stark County, Case No. 2024 CA 00032 12
assignment of error number one, found assignments of error numbers three and four
premature and sustained appellant’s second assignment of error.
{¶39} This Court found that in determining the conveyance of inter vivos gifts, the
trial court applied the wrong standard “clear and convincing evidence” instead of
“preponderance of the evidence.”
In its judgment entry, the trial court examined each contested gift and
determined whether appellant met her burden of proving an inter vivos gift
by clear and convincing evidence. The trial court did not discuss the family
gift presumption nor the undue influence presumption. Because appellant
and her mother shared a fiduciary relationship, a presumption of undue
influence arose as to all of the assets appellant alleges were conveyed as
gifts, and appellant was required to rebut this presumption by a
preponderance of the evidence.
{¶40} Id. at ¶ 30
. . . [T]he matter is remanded for a determination of whether appellant
presented sufficient evidence to rebut the presumption of undue influence
by a preponderance of the evidence and, if so determined, whether
appellees presented clear and convincing evidence to rebut the family gift
presumption.
{¶41} Id. at ¶ 36.
Stark County, Case No. 2024 CA 00032 13
Remand to the Trial Court
{¶42} On December 19, 2022, the trial court [Hon. Dixie Park] issued an Amended
Judgment Entry pursuant to this Court’s remand. The Entry consisted of twenty-three
pages and contained findings of fact and conclusions of law.
{¶43} The trial court first determined that the “evidence and testimony presented
at the hearing demonstrated each element of undue influence by a preponderance of the
evidence. ...Therefore, Marybeth has failed to present evidence sufficient to rebut the
presumption of undue influence by a preponderance of the evidence.” Judgment Entry,
Dec. 19, 2022 at 9.
{¶44} Next, the trial court considered the family gift presumption. “However,
assuming arguendo that Marybeth met her burden of rebutting a presumption of undue
influence by a preponderance of the evidence, the burden would shift to Plaintiffs to rebut
the family gift presumption by clear and convincing evidence.” Judgment Entry, Dec. 19,
2022 at 10. The trial court did an analysis of each of the transfers based on the testimony
and exhibits produced at trial. The trial court found that evidence was sufficient to rebut
the family gift presumption by clear and convincing evidence for five of the seven transfers
of assets. With regard to the PNC account, it found that one-half belonged in Kathleen’s
Estate because Marybeth failed to rebut the presumption of undue influence.
{¶45} The trial court further found that the main source of evidence that Kathleen
made an inter vivos gift of her assets to Marybeth was Marybeth’s testimony. The trial
court found that Marybeth’s testimony was “wholly unreliable and unconvincing.” “In
conclusion, the Court has previously determined and continues to find that the transferred
assets to Marybeth were not gifts.” Judgment Entry, Dec. 19, 2022 at 11. .
Stark County, Case No. 2024 CA 00032 14
{¶46} The trial court further found that Marybeth committed fraud when she misled
her siblings in the August, 2013 email. “Finally, the Court finds that a resulting injury of
being deprived of a rightful inheritance was proximately caused by the reliance... [T]he
Court hereby enters judgment in favor of Plaintiff’s on Counts VI and XIII.” Judgment
Entry, Dec. 19, 2022 at 18.
{¶47} The trial court further entered judgment for plaintiffs on conversion and
breach of fiduciary duty. 3
{¶48} As to the concealment claim, the trial court found in appellant’s favor.
{¶49} As to appellees’ request for a constructive trust, the trial court found that a
constructive trust was not necessary as the trusts and Kathleen’s Estate have the
capacity to receive and distribute any misappropriated funds ordered herein.
Hearing on August 25, 2023 on attorneys’ fees,
punitive damages and prejudgment interest.
{¶50} Following the issuance of the December, 2022 Amended Judgment Entry,
the trial judge recused herself and a new visiting judge was assigned to preside over the
case.
{¶51} The matter of attorneys’ fees, prejudgment interest and punitive damages
came on for hearing on August 25, 2023.
Hearing on attorneys’ fees
{¶52} At a pretrial immediately preceding the hearing, appellant objected to the
testimony of Attorney Charles Brown as an expert witness to testify on behalf of appellees
3 A second appeal was filed by appellant in 2023 that was dismissed for lack of
jurisdiction, 2023 CA 00012.
Stark County, Case No. 2024 CA 00032 15
on attorneys’ fees. In accordance with an agreed judgment entry, appellant received the
name of Attorney Brown three days prior to the hearing, Tr. August 25, 2023 at 6.
{¶53} Appellant alleged that Attorney Brown was an expert witness, and she did
not receive a copy of his expert report and curriculum vitae in accordance with App.R. 27.
The trial court overruled the objection of appellant saying:
. . . if he’s not testifying as an expert and he’s just testifying as to his
lay opinion, we’ll – we’ll see what he has to say...[A]nd he’s not going to be
qualified as an expert, we’ll just hear what he has to say. Okay. And then
so I’m overruling the motion to exclude this person as a lay witness.
{¶54} Tr. August 25, 2023 at 12.
{¶55} The appellees-siblings then presented the testimony of two attorneys who
represented appellees, the testimony of Attorney Brown and the itemized invoices.
Appellant cross-examined all of the witnesses and presented no additional evidence.
Punitive Damages
{¶56} At the portion of the hearing on punitive damages, no testimony was
presented as to award of punitive damages. The parties stipulated as to the evidence to
be considered for punitive damages, to wit, the trial transcripts, no previous deposition
testimony not used at trial for impeachment, oral arguments, briefs and exhibits.
{¶57} The parties submitted written arguments to the trial court.
{¶58} In separate entries, the visiting judge awarded prejudgment interest to
Attorney Dingwell in the amount of $135,264.89, denied punitive damages to appellee
siblings, and awarded attorneys’ fees to appellees-siblings in the amount of $307,250.00.
Judgment Entries, Nov. 3, 2023, Jan. 8, 2024, Feb. 26, 2024.
Stark County, Case No. 2024 CA 00032 16
{¶59} Appellant Marybeth filed a timely appeal to this Court assigning three
assignments of error.4
ASSIGNMENTS OF ERROR
{¶60} "I. THE TRIAL COURT ERRED IN ITS DECEMBER 19, 2022
AMENDED JUDGMENT ENTRY UPON REMAND IN ITS APPLICATION OF THE
FAMILY GIFT PRESUMPTION.
{¶61} "II. THE TRIAL COURT ERRED WHEN IT FAILED TO PROVIDE ANY
EXPLANATION OR ITS REASON OR REASONS FOR RULING ON THE APPELLEE’S
MOTION FOR ATTORNEY FEES.
{¶62} "III. THE TRIAL COURT ERRED IN ITS JANUARY 8, 2024 ORDER
WHEREIN IT PERMITTED EXPERT TESTIMONY REGARDING ATTORNEY FEES
WITHOUT AN EXPERT REPORT, CURRICULUM VITAE, OR TIMELY NOTICE OF AN
EXPERT."
LAW AND ANALYSIS
I. Manifest Weight of the Evidence
{¶63} In her first assignment of error, appellant contends the trial court erred when
it found that Kathleen did not intend to relinquish ownership of the majority of her wealth
to Marybeth as inter vivos gifts. We review this assignment under a manifest weight of
the evidence standard.
4 Not at issue in this appeal is the prejudgment interest awarded to Attorney Dingwell by
Judgment Entry of Feb. 26, 2024 which has not been assigned as error or the judgment
of the Probate Court that the Estate of Kathleen O’Hearn is entitled to one-half of the PNC
account as no stay of judgment was filed by appellant and the judgment has been
satisfied.
Stark County, Case No. 2024 CA 00032 17
{¶64} Under a manifest weight of the evidence standard, this Court reviews the
entire record, weighs the evidence and all reasonable inferences, considers the credibility
of the witnesses and determines whether the trial court clearly lost its way and created a
manifest miscarriage of justice.
{¶65} This Court applied the manifest weight of the evidence standard to a
probate court concealment action in Estate of DeChellis v. DeChellis, 2019-Ohio-3078
(5th Dist.) and adopted the standard set forth by the Ohio Supreme Court in Eastley v.
Volkman, 2012-Ohio-2179.
{¶66} The Ohio Supreme Court held the standard of review for manifest weight of
the evidence for criminal cases stated in State v. Thompkins, 75 Ohio St.380 (1997) is
also applicable in civil cases:
A reviewing court is to examine the entire record, weigh the evidence
and all reasonable inferences, consider the credibility of the witnesses and
determine ‘whether in resolving conflicts in the evidence, the finder of fact
clearly lost its way and created such a manifest miscarriage of justice that
the judgment must be reversed and a new trial ordered.’
{¶67} Id. at ¶ 49.
{¶68} The DeChellis court emphasized that we are not fact finders; “we neither
weigh the evidence nor judge the credibility of witnesses.” Id. at ¶ 50 citing Markel v.
Wright, 2013-Ohio-5274 (5th Dist.).
Further, “an appellate court should not substitute its judgment for that
of the trial court when there exists...competent and credible evidence
Stark County, Case No. 2024 CA 00032 18
supporting the findings of fact and conclusions of law. Id. at ¶ 50 citing
Seasons Coal Co. v. Cleveland, 10 Ohio St.3d77, 80 (1984).
The underlying rationale for giving deference to the findings of the trial
court rests with the knowledge that the trial judge is best able to view the
witnesses and observe their demeanor, gestures, and voice inflections, and
use these observations in weighing the credibility of the proffered testimony.
{¶69} Id. at ¶ 50. Accord, Donaldson v. Donaldson, 2024-Ohio-4597, ¶ 79-84 (5th
Dist.).
{¶70} Specifically, appellant claims that in rejecting Marybeth’s claims that the
various asset transfers were gifts to her, the trial court failed to properly shift the burdens
of proof when it considered a family member who was also a fiduciary. In its remand, the
trial court was instructed to determine whether appellant presented sufficient evidence to
rebut the presumption of undue influence by a preponderance of the evidence and, if so
determined, whether appellees presented clear and convincing evidence to rebut the
family gift presumption. Daddario v. Rose, 2022-Ohio-3537, at ¶ 36 (5th Dist.).
{¶71} We find that the trial court correctly applied the standards imposed by this
court on remand. We further find that the trial court’s findings of fact and conclusions of
law are not against the manifest weight of the evidence.
{¶72} The following facts are not in dispute. The appellant, Marybeth, is the
daughter of Kathleen and Arthur O’Hearn. When Arthur died, Kathleen had assets
available to her totaling over 1.8 million dollars. Certain assets totaling almost $900,000
were transferred to Marybeth’s name. Marybeth was the co-trustee of Kathleen’s trust,
the fiduciary of her estate and held a durable power of attorney. Accordingly, Marybeth,
Stark County, Case No. 2024 CA 00032 19
a family member, was also in a fiduciary relationship with Kathleen. In such cases, the
family gift presumption that the conveyance was intended as a gift, yield to the more
specific presumption of undue influence which arises in a fiduciary relationship.
{¶73} The test set forth by this court in Daddario I was adopted from Family
Services, Inc. v. Beebe, 5th Dist. Stark No. 2000CA00176, 2000 WL 1751316:
Where a confidential or fiduciary relationship exists between a donor
and donee, the transfer is looked upon with some suspicion that undue
influence may have been brought to bear on the donor by the donee. In
such cases, a presumption of undue influence arises and the burden of
going forward with evidence shifts to the donee to show his conduct was
free of undue influence or fraud, and the donor acted voluntarily and with a
full understanding of his act and its consequences . . . The donee may rebut
the presumption of undue influence by a preponderance of the evidence.
Family Services, Inc. v. Beebe, 5th Dist., Stark No. 2000CA00176, 2000 WL
1751316 (Nov. 27, 2000), (internal citations omitted).
{¶74} In this case, the trial court found that the evidence and testimony presented
at the trial demonstrated each element of undue influence by a preponderance of the
evidence.
{¶75} In its amended judgment entry, the trial court summarized the elements of
undue influence: “[1] a susceptible testator, [2] another’s opportunity to exert it, [3] the
fact of improper influence exerted or attempted, and [4] the result showing the effect of
such influence.” Judgment Entry, Dec. 19, 2022 at 8.
Stark County, Case No. 2024 CA 00032 20
{¶76} The trial court then found that “the evidence and testimony presented at
the trial demonstrated each element of undue influence by a preponderance of the
evidence.”
(1) Kathleen was a widow diagnosed with Parkinson’s Disease and
a physician recommended that she be admitted to a skilled nursing facility
or assisted living facility, (2) Marybeth was her sole caretaker. She also took
her to various estate planning meetings, in which asset sheltering plans
were discussed and Marybeth had the opportunity to transfer Kathleen’s
assets and property into her own name. (3) Following the meetings and
planning, those transfers did occur as detailed herein. (4) As a result,
Marybeth took possession of the assets and property under the guise of
asset sheltering, then retained possession of them following Kathleen’s
death. Judgment Entry, Dec. 22, 2022 at 9.
{¶77} The trial court concluded that Marybeth has failed to present evidence
sufficient to rebut the presumption of undue influence by a preponderance of the
evidence.
{¶78} So, too, the trial court found that Marybeth actions constituted fraud and
found for her siblings in their fraud action.
{¶79} Appellant failed to demonstrate the absence of any element of undue
influence and fraud by a preponderance of the evidence. The evidence and testimony
demonstrated that Kathleen was a susceptible testator due to her failing health with
Parkinson’s Disease and need for assistance with personal care. The evidence
demonstrated that Marybeth moved in with Kathleen to assist her and attended the
Stark County, Case No. 2024 CA 00032 21
sheltering planning conferences with Attorney Kreiner, accompanied by her real estate
partner Todd Bosley. Marybeth assisted Kathleen in paying her bills and hiring caretakers
for her when she wished to continue living in her home.
{¶80} Appellant points to the testimony of herself, Attorney Kreiner and Todd
Bosley who testified that no undue influence was exerted on Kathleen by Marybeth and
that Kathleen was of sound mind when she met with Attorney Kreiner to discuss her estate
plan. Appellant ignores the second part of her burden of proof - to show that Kathleen
acted voluntarily and with a full understanding of her act and its consequences. The
evidence demonstrated that Kathleen intended for her assets to be held by Marybeth in
a shelter plan for Kathleen’s benefit and then pass to her daughter Colleen if Marybeth
died before Kathleen for her continued care and benefit. The evidence did not
demonstrate that Kathleen intended to pass her wealth to Marybeth and exercise no
dominion, control or ownership of it during her lifetime.
{¶81} Take, for example, the treatment by Kathleen of the Whipple Road property
sold to Property Alliance Group, an entity owned by Marybeth and her partner, Todd
Bosley. When the property was sold in 2013 and the mortgage paid off in the amount of
$333,952.00, Kathleen typed on the payoff check the following: “the grand finale...how I
wish Art was here to see this check...his life[‘]s work – went into savings acct. with First
Merit Bank in Marybeth’s name...finally have the money to do anything I want and all I
want is for Art to be here with me.” Judgment Entry, Dec. 22, 2024 at 14-15.
{¶82} So, too, there is no credible evidence that Kathleen intended to leave an
inter vivos gift of the home where she lived - the Barnhill residence - to Marybeth. Instead,
the evidence demonstrates that she intended to include the residence in her asset shelter
Stark County, Case No. 2024 CA 00032 22
plan. While Kathleen had Attorney Kreiner transfer the property by Limited Warranty
Deed to Marybeth, she had Marybeth sign a transfer on death affidavit to her daughter
Colleen. Kathleen paid the bills on the property and, as the trial court found, exerted
ownership, dominion and control over the property as she resided there. Judgment Entry,
Dec. 22, 2022 at 14. Despite this evidence, Marybeth sold the Barnhill residence after
her mother’s death and claimed the sale proceeds as her own.
{¶83} Appellant points to evidence that Kathleen and Arthur intended to leave
Marybeth more because of her health problems and single status. In that regard,
Kathleen took separate steps to distinguish the Edward Jones Account containing
$141,782.05 from her other assets. Arthur, in his trust, stated that Marybeth should retain
the Edward Jones account in the event that his wife died before he did. The parties do
not dispute that Kathleen intended for Marybeth to have the proceeds of the Edward
Jones Account.
{¶84} The evidence demonstrated that while Kathleen and Arthur did indeed want
Marybeth to obtain more of their assets by way of the Edward Jones Account, they did
not intend to disinherit their remaining children and grandchildren. Kathleen left her trust
intact leaving all of her children as residuary beneficiaries. And Marybeth received over
$141,000 of their assets in the Edward Jones Account.
{¶85} The evidence established that Kathleen’s intention was to create an asset
sheltering plan as suggested by Attorney Kreiner and not perform inter vivos gifting of the
majority of her assets to one of her children and disinherit the remaining three.
{¶86} After the trial court decided that Marybeth did not rebut the presumption of
undue influence by a preponderance of the evidence, it continued its analysis on whether
Stark County, Case No. 2024 CA 00032 23
appellees presented evidence to rebut the family gift presumption by clear and convincing
evidence. “While this Court concluded that Defendant has failed to meet her burden of
demonstrating a lack of undue influence by a preponderance of the evidence, the
instruction on remand required application of both the presumption of undue influence
and the family gift presumption. Judgment Entry, Dec. 22, 2022 at 9.
{¶87} The trial court then concluded that the family gift presumption was rebutted
by clear and convincing evidence. The evidence demonstrated that Kathleen’s intention
was not to transfer the majority of her assets to one daughter, Marybeth, as inter vivos
gifts. Rather, her intention was to shelter her assets, use them for her benefit while she
was alive and preserve the remainder for all of her children and her grandchildren.
{¶88} The trial court found that the main source of evidence that Kathleen
intended inter vivos gifts to Marybeth was Marybeth’s testimony. The trial court noted
that her testimony was impeached and in direct contradiction to her previous depositions.
Even then, her testimony was undermined by the August, 2013 email she sent to her
siblings. In that correspondence, she explained in great detail the asset sheltering plan
that was being implemented in accordance with Kathleen’s wishes. When Marybeth
testified at the hearing that her email was not true, the trial court found all of her testimony
“wholly unreliable and unconvincing”. Judgment Entry, Dec. 22, 2022 at 11.
{¶89} So, too, as noted by appellees, the testimony of Marybeth is undermined by
the written evidence so often lacking in “he said-she said” scenarios. In addition to the
August, 2013 email to her siblings explaining Kathleen’s asset sheltering plan, there was
evidence that during Kathleen’s lifetime, Marybeth did not treat the transfers to her as
inter vivos gifts. Take, for example, the loan money that was being repaid on the
Stark County, Case No. 2024 CA 00032 24
mortgage on the Whipple Road property. On the Property Alliance Group checks written
by Marybeth in repayment of the mortgage, she referenced the loan money as being
repaid to “KO” or “mom”. Colleen Daddario was also listed as the transfer on death
beneficiary. In January, 2017, appellant faxed a letter to Attorney Kreiner asking her to
prepare a document for Kathleen to sign stating that only “one of their investments”
[Edward Jones Account] was to go to Marybeth because of her medical conditions.
{¶90} As noted by appellees, the remand from this Court did not require the trial
court to reach a different conclusion; it only required it to adopt the burden shifting
standard espoused by this Court in Beebe and Daddario I. The trial court did just that.
{¶91} It took each of the seven substantive asset transfers performed by Marybeth
and applied the evidence and testimony to each one.
{¶92} As further proof that the trial court took to heart its task to apply the burden
of proofs set forth in Daddario I, the trial court modified its finding as to the PNC account
in its amended judgment entry and found that half of the proceeds were owned by
Kathleen’s Estate. This modification was done when the trial court found that appellant
did not rebut her burden to demonstrate lack of undue influence and fraud by a
preponderance of the evidence.
{¶93} We find that the trial court carefully weighed the evidence and applied the
proper burdens of proof as required under this court’s remand. The trial court’s findings
of fact and conclusions of law are supported by the manifest weight of the evidence.
{¶94} Appellant’s first Assignment of Error is overruled.
Stark County, Case No. 2024 CA 00032 25
II. Attorneys’ fees
{¶95} In the second assignment of error, appellant argues that the trial court erred
in awarding appellees-siblings attorneys’ fees in the amount of $307,250.00. Appellant
claims that while the trial court cited the correct standard, Rule 1.5(a) of the Rules of
Professional Conduct, it did not provide an explanation of how the standard applied to the
attorneys’ fees awarded.
{¶96} When considering an award of attorneys’ fees, Ohio follows the American
Rule under which a prevailing party in a civil action may not generally recover attorney
fees. However, attorneys’ fees may be awarded when a statute or an enforceable contract
provided for an award of attorneys’ fees or when the prevailing party demonstrates the
losing party acted in bad faith. Jakubs v. Borally, 2015-Ohio-2696, ¶ 9 (8th Dist.) citing
Wilborn v. Bank One Corp, 2009-Ohio-306 ¶ 7.
{¶97} In this case, the trial court cited R.C. 5810.04 as authority for awarding
attorneys’ fee. R.C. 5810.04 provides authority to award costs, expenses and reasonable
attorney fees in judicial proceedings involving the administration of a trust.
{¶98} We review an award of attorneys’ fees under R.C. 5810.04 for an abuse of
discretion. Rex v. Rex, 2016-Ohio-5788, ¶ 51; McHenry v. McHenry, 2017-Ohio-1534, ¶
56. An abuse of discretion implies a decision that is unreasonable, arbitrary, or
unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). Indeed, where
a trial court does not award attorneys’ fees in a trust action, appellate courts have
remanded the matter to the trial court to determine if such an award was warranted.
{¶99} Wills v. Kolis, 2010-Ohio-4351, ¶ 52 (8th Dist.); Jakubs v. Borally, 2015-
Ohio-2696 (8th Dist.) at ¶ 19 (“. . . [W]e reverse the trial court’s judgment with respect to
Stark County, Case No. 2024 CA 00032 26
the award of attorney fees, costs, and expert witness fees. We remand the matter to the
trial court with instructions to conduct an evidentiary hearing to determine if such an award
is warranted.”)
{¶100} Appellant does not dispute the authority of the trial court to award attorneys’
fees under R.C. 5810.04 nor does she argue that the amount of fees is disproportionate
to the amount of compensatory damages or shocks the conscience. Her claims are that
the trial court did not provide her guidance as to how it reached the amount of
$307,250.00. Appellant’s Brief at 18.
{¶101} After the presiding judge issued its amended judgment entry finding for
appellees, she recused herself and a visiting judge was appointed by assignment to hear
the issues of punitive damages, prejudgment interest and attorneys’ fees.
{¶102} The record demonstrates that a pre-evidentiary hearing was held with all
parties, and the parties agreed on an evidentiary hearing date and to exchange witness
lists three days prior to the hearing.
{¶103} On August 25, 2023, the matter of attorneys’ fees came on for evidentiary
hearing.
{¶104} The attorneys for appellees-siblings testified and presented invoices
claiming 1,242.20 billable hours of work from April, 2020 to August, 2023. Appellant cross
examined the attorneys on their fees.
{¶105} On January 8, 2024, the visiting judge entered an order reducing the
requested amount from $454,784.75 to $307,250.00. Before entering the award, the
court noted that the Court must “determine whether the fees to be assessed against the
Stark County, Case No. 2024 CA 00032 27
Defendant are reasonable.” Judgment Entry, Jan. 8, 2024, at 5. It then stated that it was
guided by Rule 1.5(a) of the Rules of Professional Conduct.
{¶106} We find that the trial court did not abuse its discretion in its award of
attorneys’ fees.
{¶107} Appellant argues that the court did not take into consideration the fee
customarily charged in the locality for similar legal services. However, as noted by
appellees, the combined hourly rate of $247.34 was awarded by the trial court - ($307,250
divided by 2242.20 billable hours). Appellant noted during oral argument that the Probate
Judge in Stark County customarily allowed a rate not to exceed $300 per hour.
Accordingly, appellant has not demonstrated that the appellee siblings were awarded
attorneys’ fees out of line with the customary rate.
{¶108} So, too, appellant argues that appellees' counsel should not be awarded
attorneys’ fees for the appeal work done in Daddario I in which appellant prevailed on one
assignment of error and the case was remanded to the trial court. However, as noted by
appellees, appellant did not prevail on the remainder of the assignments of error.
Appellant also filed a second appeal that was dismissed by this Court for lack of
jurisdiction in which appellees-siblings filed various pleadings.
{¶109} This Court has also found an award of attorneys’ fees for work performed
on prior appeals to this Court is permissible when awarded pursuant to a remedial statute
such as R.C.5810.04. McHenry v. McHenry, 2017-Ohio-134 (5th Dist.) at ¶ 65.
{¶110} In short, the award of attorneys’ fees does not shock the conscience and is
reasonable under the Rules of Professional Conduct. Appellees-siblings were awarded
close to one million in damages over litigation which lasted over three years.
Stark County, Case No. 2024 CA 00032 28
{¶111} The trial court did not abuse its discretion in its award of attorneys’ fees.
{¶112} The second assignment of error is overruled.
III. Testimony of Attorney Brown
{¶113} In her last assignment of error, appellant argues that the trial court erred by
permitting expert testimony on attorneys’ fees in violation of Civ.R. 26(B)(7). Civ.R.
26(B)(7) requires that reports of expert witnesses shall be exchanged with all other parties
and expert report and curriculum vitae must be exchanged in accordance with the time
schedule established by the court.
{¶114} In this case, Attorney Charles Brown testified at the evidentiary hearing on
attorneys’ fees on behalf of appellees.
{¶115} The evidentiary hearing on attorneys’ fees was held on August 25,
2023. Prior to the hearing, a pre-hearing conference was held among the parties
and the parties agreed, in a judgment entry, to exchange the names of witnesses
at least three days prior to trial. Agreed Judgment Entry, July 14, 2023.
{¶116} There is no claim by appellant that appellees did not comply with this
judgment entry and identify Attorney Brown as a witness. Instead, appellant complains
that Charles Brown was called as an expert witness on the issue of attorneys’ fees and
allowed to testify that appellees’ attorney fees were reasonable and other matters related
to the skill and invoices of the appellees’ attorneys.
{¶117} Appellant objected at the hearing, the trial court overruled the objection, and
Attorney Brown testified and was available for cross examination by appellant.
{¶118} The trial court treated Attorney Brown as a lay witness and stated during
the hearing: “Well, we don’t have an expert witness. We’ve already clarified that.”
Stark County, Case No. 2024 CA 00032 29
{¶119} Appellant has provided no citation to authority that Civ.R.26(B)(7) applies
to this case. The parties entered into an agreed judgment entry that set forth the rules
regarding the naming of witnesses. Appellant does not allege that she did not receive the
name of Attorney Brown prior to the hearing.
{¶120} Still, there is nothing in the record that demonstrates that the trial court relied
on Attorney Brown’s testimony in its decision awarding attorneys’ fees.
{¶121} The trial court made it clear to the parties during the hearing what he was
considering in his award of attorneys’ fees:
[COURT]: So I can look at the itemized statement and reach a
decision because, I might have said this before, I believe I have, that all of
my decisions are based on Rules of Professional Conduct 1.5(A) and the
eight conditions there that I would be looking at and that’s what I look at.
Tr. August 24, 2023 at 44-45.
{¶122} Even then, in its judgment entry, the trial court stated the evidence it relied
upon to award attorneys’ fees:
During the hearing held in this matter, the Plaintiffs provided
evidence by way of testimony from their legal counsel, in addition to
submitting their invoices for work performed, including case expenses that
were incurred by the Plaintiff. In considering that evidence, the Court must
determine whether the fees to be assessed against the Defendant are
reasonable. Judgment Entry, Jan. 8, 2024 at 5.
{¶123} In short, appellant has failed to cite to any authority that Civ.R. 26(B)(7)
applies in this case, where the parties agreed in a judgment entry on the manner in which
Stark County, Case No. 2024 CA 00032 30
the parties would name witnesses and have prior knowledge of witnesses. Appellant has
failed to demonstrate that the testimony of Attorney Brown in some way affected the
outcome of the hearing. The trial court stated in its judgment entry and at the hearing
what it considered in making its determination. The trial court closely examined the
invoices and testimony of the appellees’ legal counsel. The trial court did not award
appellees the attorneys' fees they requested instead reducing the request by one-third
and less than $300 per hour.
{¶124} The third assignment of error is overruled.
CONCLUSION
{¶125} For the foregoing reasons, the judgment of the Court of Common Pleas,
Probate Division, Stark County, Ohio, is affirmed.
By: Wise, J.
Gwin, P. J., and
King, J., concur.
JWW/kt 1209