The opinion
[Cite as Mary Ann Lauer Living Revocable Trust v. McManus, 2025-Ohio-5669.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
Mary Ann Lauer Living Revocable Court of Appeals No. L-25-00113
Trust, et al.
Trial Court No. CI0202302582
Appellants
v.
Kevin McManus, et al. DECISION AND JUDGMENT
Appellees Decided: December 19, 2025
*****
Donald Gallick, Esq., for appellants/ cross-appellees,
Mary Ann Lauer Living Revocable Trust and Mark Rockwell.
Jason D. Winter, Esq., Courtney J. Trimacco, Esq., and
Katheryn E. Hach, Esq., for appellees/ cross-appellants Kevin McManus, Esq.,
and McManus & McManus.
*****
SULEK, P.J.
{¶ 1} This is an appeal and cross-appeal from the judgments of the Lucas County
Court of Common Pleas, which (1) awarded summary judgment to appellees Kevin
McManus and his law firm McManus & McManus (collectively “McManus”) on
appellants’ the Mary Ann Lauer Living Revocable Trust (“Trust”) and its trustee Mark
Rockwell (collectively “Rockwell”) complaint for legal malpractice, and (2) denied
without a hearing McManus’s motion for sanctions. For the reasons that follow, the trial
court’s judgments are affirmed, in part, and reversed, in part.
I. Factual Background and Procedural History
{¶ 2} Mary Ann Lauer had two children, Mark Rockwell and Tamara Rockwell-
Huebner (“Huebner”). During her life, Lauer established the Mary Ann Lauer Living
Revocable Trust. Rockwell was designated the successor trustee and was a 70%
beneficiary of the Trust. Huebner was a 10% beneficiary, as were her two children. At
its creation, the Trust contained only Lauer’s home and tangible personal property; the
rest of Lauer’s assets remained in her possession. Upon Lauer’s death in April 2022, her
assets transferred into the Trust pursuant to a “pour-over” provision in her will.
{¶ 3} In 2017, Huebner contacted McManus about establishing a guardianship for
Lauer. On May 17, 2017, the Lucas County Probate Court deemed Lauer incompetent
due to dementia and Alzheimer’s Disease and appointed McManus as guardian over
Lauer’s person and estate. McManus also served as legal counsel for the guardianship.
Rockwell retained counsel who appeared on his behalf in the guardianship proceedings.
{¶ 4} As guardian, McManus submitted several accountings to the probate court.
The first accounting covered the period from May 11, 2017, to May 14, 2018, and
included total disbursements of approximately $200,000. The second accounting covered
the period from May 14, 2018, to May 14, 2019, and included total disbursements of
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approximately $245,000. The third accounting covered the period from May 14, 2019, to
May 14, 2020, and included total disbursements of approximately $240,000. A fourth
accounting covered May 14, 2020, to May 14, 2021, and included total disbursements of
approximately $200,000. The probate court approved each of the accountings, finding
“said account, in all respects, just and correct and in conformity to law.”
{¶ 5} Lauer died on April 28, 2022. McManus submitted the final accounting, and
it was approved on December 28, 2022. In its entry approving the accounting and
closing the guardianship, the probate court again found “said account, in all respects, just
and correct and in conformity to law.” The court further found that “the said fiduciary
has fully and lawfully administered the estate and has distributed the assets thereof in
accordance with the law.”
{¶ 6} Rockwell did not file exceptions to the first, second, fourth, or final
accountings. He did, however, file an exception to the third accounting. In his exception,
Rockwell noted that approximately $100,000 was spent on Lauer’s full-time care at the
Lakes of Monclova. Of the remaining disbursements, approximately $115,000 was paid
to three individuals: $27,000 to Huebner, $47,000 to Mary Keyes, and $41,000 to
Martha Odom. Rockwell did not believe that the disbursements were for services
provided in Lauer’s best interest. He further asserted that while he did not have any
receipts in support of the current accounting, receipts from the second accounting showed
that tens of thousands of dollars were spent on clothes and food, as well as for purchases
made in the Bahamas, Maine, and Chicago.
3.
{¶ 7} A hearing on Rockwell’s exception to the third accounting was held before a
magistrate on May 17, 2021. The following is taken from the magistrate’s findings.
McManus testified that Lauer has had daytime private aides seven days a week since
2018. Keyes and Odom are the aides, and they get paid $1,700 weekly. They do not
have written agreements or submit time sheets, but they work between 8 to 12 hours a
day and McManus was unaware of them working less hours. Regarding Huebner’s
reimbursements, she testified that the expenditures are entirely for her mother and are
mostly for food and clothing. During the hearing, she was questioned about many
specific receipts and explained the purpose for each one.
{¶ 8} Following the hearing, the magistrate entered his decision denying
Rockwell’s exceptions and approving the third accounting. The magistrate found that the
expenditures have furthered the goals of improving Lauer’s health, helping her to gain
weight, and improving her appearance, thereby “vastly improv[ing]” Lauer’s quality of
life. Further, he found that Lauer loves, trusts, and relies on the two aides “and has
constant care from [them] when she arises in the morning to when [she] goes to sleep.”
The aides “make sure she eats, bathes, interacts, goes to church, [and] leaves on
holidays.” The magistrate also determined that there was no evidence the aides were
overpaid or did not earn their wages for “their exemplary care of [Lauer].” Finally, the
magistrate found that
McManus, [Huebner] and Mary Keyes all were consistent with testimony
that when things were purchased, Mary and Martha signed for them before
they were given to [Lauer] and said receipts were tallied and given to the
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Guardian before reimbursement was allowed. . . . There is only one person
who has benefited from the use of the two aides, outside food preparations,
church, outings, new clothes and numerous chachkis/baubles and articles of
clothing: [Lauer].
McManus did not object to the magistrate’s decision, and the probate court adopted it as a
judgment on May 27, 2021.
{¶ 9} Simultaneously with his exception to the third accounting, Rockwell filed a
“Motion to Change Guardian,” seeking to remove McManus as guardian and naming
himself as guardian instead. That motion was heard by the magistrate on January 12,
2022.
{¶ 10} As recounted in the magistrate’s decision following that hearing, the
testimony revealed that prior to the guardianship, Rockwell provided substantial care and
assistance to Lauer, and she named him her power of attorney and designated him as her
guardian if one was needed. Huebner, however, believed that Rockwell was not
providing adequate care as evidenced by the incidents when the police found Lauer
wandering through the neighborhood, underweight, disheveled, and wearing tattered
clothing. McManus testified that he spoke to a neighbor in 2017 who reported that this
was a regular occurrence. Huebner further believed that Rockwell was isolating Lauer,
was not taking her to doctor’s appointments, and was taking money from her.
{¶ 11} Rockwell, on the other hand, testified that he was taking good care of Lauer
before Huebner came and effectively stole her away and placed her in a full-care facility
against her wishes. He testified that McManus was not doing his best for Lauer by
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allowing her to lay in bed until the aides arrived at 10:00 a.m., writing reimbursement
checks to Huebner for greater amounts than Rockwell ever spent, and “turning in
incorrect documents to [the probate judge] to get guardianship: I was supposed to be
appointed guardian. My attorney emailed him documents but McManus did a switcheroo
with the documents.”
{¶ 12} On January 21, 2022, the magistrate entered his decision denying
Rockwell’s motion. The magistrate found no evidence to remove McManus, and that
doing so would “be a grave disservice” to Lauer. Further, the magistrate found that the
issue of the guardian’s performance was res judicata because it had already been
determined in the order approving the third accounting and denying Rockwell’s
exceptions to the same.
{¶ 13} Rockwell objected to the magistrate’s order denying his motion to change
the guardian. On March 10, 2022, the probate court overruled Rockwell’s objections and
adopted the magistrate’s decision as its own judgment. Notably, the probate court found
that the matter of the guardianship over the estate “is already a res judicata matter settled
by this Court’s prior 5/27/2021 Judgment Entry wherein no financial misconduct or
irregularities were found with respect to the current guardian’s recent accountings or with
financial choices made for the benefit of the Ward, which includes expenditures for the
Ward’s well-being in her current location.”
{¶ 14} Rockwell appealed the probate court’s March 10, 2022 judgment to this
court in case No. L-22-1077. While the appeal was pending, Lauer died. Consequently,
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McManus moved to dismiss the appeal. Rockwell opposed the dismissal, arguing that
replacement of the guardian was not the only issue before the court. He asserted that the
separate issue of his allegations of financial misconduct committed by the guardian
should be decided on the merits.
{¶ 15} On December 14, 2022, this court granted McManus’s motion and
dismissed the appeal, thereby declining to address Rockwell’s financial misconduct
claims. Specifically, this court reasoned that the probate court’s May 27, 2021 judgment,
which denied Rockwell’s exceptions and approved the third accounting, was a final
appealable order, holding that “[b]ecause [Rockwell] failed to appeal the May 27, 2021
judgment settling the account, and also failed to file objections related to any financial
misconduct on the part of McManus, we find that any appeal on that issue is barre[d] by
res judica[t]a.” Furthermore, this court recognized that following the magistrate’s
decision on the motion to change the guardian, Rockwell did not include any objections
based upon fraud. Instead, his objections were based upon whether he was an appropriate
caretaker for Lauer and whether Lauer wanted him to be her guardian. This court,
therefore, held that “because [Rockwell] only assigns as error issues related to financial
misconduct, but failed to object to those findings, [Rockwell] is precluded from raising
issues of financial misconduct as error on appeal.” This court did note that Rockwell
“still has the ability to appeal the judgment on the final accounting and any other
statutory remedies available.” As stated above, however, Rockwell did not object to or
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appeal the judgment on the final accounting, which was approved by the probate court on
December 28, 2022.
{¶ 16} Instead, on May 24, 2023, Rockwell initiated the present action by filing a
two-count complaint against McManus, his law firm McManus & McManus, and
Huebner. The complaint included one count against McManus for legal malpractice “due
to the failure to review, question, and investigate expenditures during the guardianship
which were obvious not to benefit the ward and deprived funds to [the Trust].” The
second count alleged that Huebner served as the guardian to Lauer and breached a
fiduciary duty owed to her by misappropriating funds to enrich her friends, take
vacations, and go on shopping trips. Huebner filed a counterclaim, asserting causes of
action for conversion, breach of the trust agreement and unjust enrichment, declaratory
judgment, breach of fiduciary duties as trustee, and for an accounting.
{¶ 17} Upon McManus’s request, Rockwell filed a “Statement of Damages
Proffered by Plaintiffs” pursuant to Civ.R. 8(A), in which he alleged that McManus
“committed gross negligence in submitting hundreds of thousands of dollars worth of
questionable receipts, incomplete receipts, and ‘cut off’ copies.” He specifically
identified the payments made to Keyes and Odom in 2018, 2019, and 2022, as well as
over one hundred different instances of receipts that were submitted for various items.
{¶ 18} On February 28, 2024, McManus moved for judgment on the pleadings,
arguing that Rockwell’s claim was an impermissible collateral attack on the final
judgment of the probate court and was barred by collateral estoppel. McManus asserted
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that the issue of whether he acted in an improper or unlawful manner in serving as
Lauer’s guardian was actually and necessarily litigated and determined in the probate
proceedings wherein the probate court found that “all financial actions were taken [by
McManus] for the improvement of [Lauer’s] condition from 5/11/2017 onwards, which
has been accomplished through the Guardianship . . ..” On April 9, 2024, the trial court
held a hearing via Zoom, following which it summarily denied McManus’s motion for
judgment on the pleadings.
{¶ 19} After further discovery, including the depositions of Rockwell, McManus,
and Huebner, McManus moved for summary judgment. McManus argued, inter alia, that
(1) no attorney-client relationship existed with either Rockwell or the Trust, and
Rockwell cannot overcome McManus’s immunity from liability to third persons by a
showing of malice or privity; (2) the complaint is an impermissible collateral attack on
the final judgment of the probate court; (3) Rockwell is collaterally estopped from
relitigating the propriety of McManus’s actions as attorney-guardian; (4) Rockwell
waived any objection to McManus’s accountings through his failure to raise exceptions to
the final guardian’s account; (5) Rockwell has not produced an expert report to sustain
his claim of legal malpractice; and (6) Rockwell’s complaint is barred by the statute of
limitations and partially barred by the statute of repose.
{¶ 20} Rockwell opposed the motion for summary judgment, arguing that he filed
exceptions to the guardian’s accountings, that the probate judge’s approval of the
guardian’s accountings did not absolve McManus of malpractice, and that there was
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privity between the guardianship and the Trust. In support of his claim for legal
malpractice, Rockwell contended that a factual question existed regarding whether
McManus failed to perform his fiduciary duty by not conducting an investigation of “a
minimum of $400,000.00 of questionable reimbursements for food, jewelry, clothes, gift
cards, ‘payroll,’ and cash withdrawals.” Much of Rockwell’s opposition was devoted to
the details of various expenditures reimbursed by McManus. Submitted with Rockwell’s
opposition was an expert report from John Phillips of Phillips Law Firm, Inc. The report
contained Phillips’s expert opinion that McManus “committed legal malpractice related
to the representation of [Lauer] and the [Trust].”
{¶ 21} Rockwell also argued, however, that even if the claim for legal malpractice
failed, “the attorney/guardianship could be found liable for a breach of fiduciary duty.”
Notably, Rockwell did not plead a claim for breach of fiduciary duty against McManus.
In his reply, McManus recognized that the single claim against him was for legal
malpractice, and he therefore expressly did not address Rockwell’s arguments “as
[Rockwell’s] discussion of this claim has no bearing on the McManus Defendants’
pending Motion for Summary Judgment.”
{¶ 22} On February 14, 2025, the trial court granted McManus’s motion for
summary judgment on the count of legal malpractice. It ordered, however, that the count
of breach of fiduciary duty would be tried to a jury. The trial court’s entry did not
contain any discussion of factual findings or legal reasoning.
10.
{¶ 23} After the trial court entered its judgment, Rockwell filed a motion to vacate
or for reconsideration, in which he asserted that a pleading error caused “a
misunderstanding of which civil claims are levied against which defendant.” The motion
stated,
[Rockwell’s] counsel mistakenly believed that there were two civil counts
against Defendant Kevin McManus: legal malpractice and breach of
fiduciary duty and a single count of fraud against Defendant Tamara
Huebner-Rockwell. Counsel erroneously believed that he had amended the
original complaint and corrected the misnaming error levelling a civil cause
of action that accused Tamara Huebner-Rockwell of breach of fiduciary
duty as the guardian of Mary Ann Lauer. The only explanation for the
error is that the case involved an out-of-state client, a massive amount of
records, and that Attorney Gallick could not initially look at court records
from the Lorain (sic) County Probate Court because the case was sealed or
“locked” prohibiting others from inspecting the docket.
Rockwell requested that the jury trial on the count of breach of fiduciary duty “go
forward against Kevin McManus,” as the same claim against Huebner would be futile
since she was not the guardian. Concurrently with the motion to vacate or for
reconsideration, Rockwell filed a motion to amend the complaint to name McManus as
the guardian for purposes of the breach of fiduciary duty claim.
{¶ 24} Shortly thereafter, McManus moved for sanctions pursuant to R.C. 2323.51
and Civ.R. 11 against Rockwell and his attorney, alleging that the action was frivolous
because (1) McManus never had an attorney-client relationship with Rockwell or the
Trust, (2) Rockwell and the Trust were solely residuary beneficiaries without entitlement
to any assets expended by the guardianship and therefore lacked standing to sue for legal
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malpractice, and (3) the conduct of McManus as guardian had already been fully and
favorably adjudicated.
{¶ 25} On April 28, 2025, the trial court entered its judgment resolving the case.
The trial court denied McManus’s motion for sanctions. It further stated that Rockwell
agreed to dismiss the complaint against Huebner and she agreed to dismiss her
counterclaims against him. The trial court did not specifically rule on Rockwell’s
motions to vacate or to amend the pleadings in its entry, but it orally denied the motion in
a telephone conference with the parties. Like all its other entries, the trial court’s April
28, 2025 judgment did not include any detail regarding facts or legal analysis.
II. Assignments of Error
{¶ 26} Rockwell timely appeals the judgments of the Lucas County Court of
Common Pleas, asserting three assignments of error for review:
1. The journal entry granting summary judgment fails to include any
factual basis or legal reasoning, precluding any meaningful review by a
court of appeals, as required by Murphy v. Reynoldsburg.
2. The trial court erred in granting summary judgment on the legal
malpractice claim as defendants breached the standard of care owed and
because the claim was supported by an unchallenged expert opinion.
3. The trial court committed an abuse of discretion by orally denying
the motion to amend the complaint to include the correct name of the
guardian.
{¶ 27} McManus cross-appeals, and asserts as his assignment of error:
The trial court abused its discretion in failing to hold an evidentiary
hearing on cross-appellant’s motion for sanctions where it demonstrated
“arguable merit.”
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III. Analysis
A. The trial court is not required to include a factual basis or legal reasoning
in its entry granting summary judgment.
{¶ 28} In his first assignment of error, Rockwell argues that the trial court erred
when it granted summary judgment without including any findings of fact or legal
reasoning. He cites Murphy v. Reynoldsburg, 65 Ohio St.3d 356, 360 (1992), for the
proposition that a trial court must thoroughly examine all the evidence before granting
summary judgment.
{¶ 29} In Murphy, the trial court admitted to the parties before it, “I haven’t read
your motion. I haven’t read your briefs. So, educate me.” Id. at 359. It then heard the
arguments of the parties and awarded summary judgment to the defendants at the close of
their presentation. Id. at 357. The Ohio Supreme Court reversed, holding that “Civ.R.
56(C) places a mandatory duty on a trial court to thoroughly examine all appropriate
materials filed by the parties before ruling on a motion for summary judgment.” Id. at
360.
{¶ 30} The issue in Murphy is not present here. The record contains no indication
that the trial court failed to examine and consider the materials filed by the parties. This
court, therefore, presumes the regularity of the proceedings and that the trial court
considered all the appropriate materials.
A general principle of appellate review is the presumption of regularity,
that is, a trial court is presumed to have followed the law unless the
contrary is made to appear in the record. Thus, the court of appeals
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generally presumes regularity in the proceedings below, and all
presumptions will be indulged in support of the validity and correctness of
the proceedings below. Also, in appeals, all reasonable presumptions
consistent with the record will be indulged in favor of the legality of the
proceedings below. The law presumes that the decree or judgment was
made upon proper grounds; that the court below applied the law correctly;
that a trial judge performed one’s duty and did not rely upon anything in
reaching a decision upon which one should not have relied; and that the
action below was justified.
State v. Rutledge, 2025-Ohio-4573, ¶ 84 (6th Dist.), quoting State v. Phillips, 2022-Ohio-
1262, ¶ 24 (2d Dist.), quoting 5 Ohio Jur.3d, Appellate Review, § 454.
{¶ 31} Furthermore, whether the trial court considered the appropriate materials is
a separate question from whether the trial court’s judgment entry must include factual
findings and legal reasoning. On that question, “‘[i]t is well settled in Ohio that a trial
court is not required to issue a written opinion containing findings of fact and conclusions
of law when ruling on a motion for summary judgment.’” Priore v. State Farm Fire &
Casualty Co., 2014-Ohio-696, ¶ 11 (8th Dist.), quoting Solomon v. Harwood, 2011-Ohio-
5268, ¶ 61 (8th Dist.); see also Civ.R. 52 (“Findings of fact and conclusions of law
required by this rule and by Civ.R. 41(B)(2) and Civ.R. 23(G)(3) are unnecessary upon
all other motions including those pursuant to Civ.R. 12, Civ.R. 55, and Civ.R. 56.”); State
ex rel. Parker Bey v. Byrd, 2020-Ohio-2766, ¶ 19 (in a public records mandamus action,
“a court of appeals is not required to issue findings of fact and conclusions of law when
ruling on a summary-judgment motion”); Essig v. Blank, 2021-Ohio-2602, ¶ 21 (2d
Dist.); Natl. Collegiate Student Loan Trust 2005-3 v. Dunlap, 2018-Ohio-2701, ¶ 46 (4th
Dist.); Natl. City Real Estate Servs. L.L.C. v. Shields, 2013-Ohio-2839, ¶ 42 (11th Dist.).
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{¶ 32} Finally, this court reviews the award of summary judgment de novo,
without any deference to the trial court’s reasoning. Koler v. Grand Harbour Condo.
Owners Assn., 2014-Ohio-1299, ¶ 5 (6th Dist.), citing Doe v. Shaffer, 90 Ohio St.3d 388,
390 (2000). As such, a failure by the trial court to provide its factual determinations or
legal reasoning in its entry granting summary judgment, even if it were error, would be
harmless.
{¶ 33} Accordingly, Rockwell’s first assignment of error is not well-taken.
B. Summary judgment to McManus is appropriate where the claim is barred
by res judicata.
{¶ 34} In his second assignment of error, Rockwell argues that the trial court erred
in awarding summary judgment to McManus.
{¶ 35} Applying the de novo standard of review, summary judgment should be
upheld when there is no issue of material fact, the moving party is entitled to judgment as
a matter of law, and when viewing the evidence most strongly in favor of the nonmoving
party, reasonable minds can only come to one conclusion that is adverse to the moving
party. Koler at ¶ 5, quoting Harless v. Willis Day Warehousing Co., 54 Ohio St.2d 64, 66
(1978); Civ.R. 56(C).
{¶ 36} In his brief, in addition to arguing his claim of legal malpractice, Rockwell
also asserts that the case involves allegations of breach of fiduciary duty. The two claims
are similar. “To establish a cause of action for legal malpractice, a plaintiff must show
‘the existence of an attorney-client relationship giving rise to a duty, a breach of that
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duty, and damages proximately caused by that breach.” Ratonel v. Roetzel & Andress,
L.P.A., 2016-Ohio-8013, ¶ 6, quoting New Destiny Treatment Ctr., Inc. v. Wheeler, 2011-
Ohio-2266, ¶ 25; Millican v. Albrechta & Coble, Ltd., 2018-Ohio-776, ¶ 15 (6th Dist.)
(“The elements of legal malpractice are: (1) the attorney owed a duty or an obligation to
the plaintiff; (2) there was a breach of that duty or obligation and the attorney failed to
conform to the standard required by law; and (3) there is a causal connection between the
conduct complained of and the resulting damage or loss.”). Likewise, to establish a
breach of fiduciary duty, the plaintiff must “establish the existence of a fiduciary duty,
breach of that duty, and injury proximately caused by the breach.” Wall-Meiring v.
Gibson, 2023-Ohio-664, ¶ 57 (6th Dist.), quoting Newcomer v. Natl. City Bank, 2014-
Ohio-3619, ¶ 9 (6th Dist.); Strock v. Pressnell, 38 Ohio St.3d 207, 216 (1988).
{¶ 37} Responding to McManus’s argument below that no attorney-client
relationship existed, Rockwell for the first time argues that liability to third parties for
legal malpractice is appropriate where the lawyer acted “fraudulently or maliciously,”
citing Shoemaker v. Gindlesberger, 2008-Ohio-2012, ¶ 11 (necessity of privity for a
third-party claim of legal malpractice “may be overridden if special circumstances such
as ‘fraud, bad faith, collusion or other malicious conduct’ are present”).
{¶ 38} Aside from his argument attempting to establish third-party liability for a
legal malpractice claim, Rockwell does not address any of McManus’s other procedural
defenses such as res judicata or the statute of limitations. Instead, he focuses on
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relitigating the details of the various expenditures that were reimbursed and submitted to
the probate court in the guardianship proceedings.
{¶ 39} Upon review, it is not necessary to delve into the issues surrounding the
merits of the various expenditures of the guardianship. Nor is it necessary to determine
whether Rockwell can establish third-party liability for legal malpractice or even whether
the complaint asserted a cause of action for breach of fiduciary duty against McManus.
This is so because, in this case, the claims are barred by res judicata.
{¶ 40} “The doctrine of res judicata encompasses the two related concepts of
claim preclusion, also known as res judicata or estoppel by judgment, and issue
preclusion, also known as collateral estoppel.” O’Nesti v. DeBartolo Realty Corp., 2007-
Ohio-1102, ¶ 6; Banks v. Toledo, 2023-Ohio-1906, ¶ 29 (6th Dist.). “Claim preclusion
prevents subsequent actions, by the same parties or their privies, based upon any claim
arising out of a transaction that was the subject matter of a previous action.” Id. “Where
a claim could have been litigated in the previous suit, claim preclusion also bars
subsequent actions on that matter.” Id. “Issue preclusion, on the other hand, serves to
prevent relitigation of any fact or point that was determined by a court of competent
jurisdiction in a previous action between the same parties or their privies.” Id. at ¶ 7.
{¶ 41} Here, Rockwell’s claims—whether styled as legal malpractice or breach of
fiduciary duty—rise and fall on the propriety of McManus’s conduct as the guardian in
approving expenditures from Lauer’s estate. The issue of whether those expenditures
were made in the best interest of Lauer was determined by the probate court in its review
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of the guardian’s accountings. See R.C. 2109.32 (“At the hearing upon an account
required by section 2109.302 . . . the court shall inquire into, consider, and determine all
matters relative to the account and the manner in which the fiduciary has executed the
fiduciary’s trust, including the investment of funds, and may order the account approved
and settled or make any other order that the court considers proper.”).
{¶ 42} As an interested party, Rockwell had the opportunity to file exceptions to
the accountings, which he did relative to McManus’s third accounting. R.C. 2109.33.
Those exceptions were fully heard and overruled by the magistrate. Rockwell did not
object to the magistrate’s decision and it was adopted by the probate court as its judgment
on May 17, 2021. As to the other accountings, Rockwell did not file any exceptions, and
they were approved by the probate court. The orders of the probate court approving the
accountings have the effect of a judgment. R.C. 2109.35. Rockwell did not appeal any
of the probate court’s judgments approving the accountings, nor did he attempt to vacate
those judgments pursuant to the procedures in R.C. 2109.35.
{¶ 43} In In re Guardianship of Skrzyniecki, 118 Ohio App.3d 67 (6th Dist. 1997),
this court examined the effect of a failure to file exceptions to an accounting on
subsequent claims that the guardian breached his fiduciary duty and negligently
administered the ward’s estate. In that case, the ward resided at a nursing home. As the
ward’s finances were exhausted, the guardian applied for Medicaid to cover the
continued costs of the nursing home services. The Medicaid application was delayed,
however, due to the discovery of a small amount of corporate stock that was previously
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unknown to the guardian. Because of this delay, the ward did not pay the nursing home
for approximately nine months, incurring a debt of over $20,000. Id. at 68-69.
{¶ 44} The nursing home filed a motion to remove the guardian and to surcharge
the bonding company for the debt. It alleged that the guardian breached his fiduciary
duty and negligently administered the ward’s estate by failing to qualify the ward for
Medicaid in a timely manner. Id. at 72. Two months after this motion was filed, the
guardian filed the final accounting of the ward’s estate. No exceptions to the final
accounting were filed. Prior to reviewing the motion to remove the guardian and to
surcharge, the probate court approved the final accounting of the guardianship,
specifically finding that “the final account was just and correct and in conformity to law
and that ‘said fiduciary has fully and lawfully administered the ESTATE and has
distributed the assets thereof in accordance with the LAW as shown in said account.’”
Id. at 70. The probate court then considered the motion to remove the guardian and to
surcharge the bonding company and found it not well taken, reasoning that the final
accounting had been approved, no exceptions had been filed to it, and the nursing home
had not provided any proof of the debt. Id.
{¶ 45} On appeal, the nursing home argued that it was not required to file
exceptions to the final accounting to protect its right to challenge the administration of
the estate. Id. This court disagreed. It reasoned that the probate court’s review of the
final accounting required it to “determine whether the guardian had fully and lawfully,
i.e., non-negligently, administered the ward’s estate.” Id. at 72. This court held, “in
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order to preserve its right to challenge the guardian’s administration of the estate of the
ward, appellant was required to file exceptions to the guardian’s final account. Because
appellant did not file such exceptions, the lower court’s approval of the final account was
res judicata on the issue of whether the guardian properly administered the ward’s
estate.” Id.
{¶ 46} Skrzyniecki is applicable here. When it approved McManus’s accountings,
the probate court was required to “inquire into, consider, and determine all matters
relative to the account and the manner in which the fiduciary has executed the fiduciary’s
trust, including the investment of funds . . ..” R.C. 2109.32. Upon reviewing the
accountings, it determined “said account, in all respects, just and correct and in
conformity to law.” The court further found in the final accounting that “the said
fiduciary has fully and lawfully administered the estate and has distributed the assets
thereof in accordance with the law.” Rockwell did not file an exception to the final
accounting, or to any of the accountings other than the third one. And when his
exception to the third accounting was denied by the magistrate, he did not file objections
to the magistrate’s decision with the probate court. Rockwell also did not appeal any of
the probate court’s judgments approving the accountings.
{¶ 47} Res judicata “bars a party from relitigating the same issue or claim that has
already been decided in a final, appealable order or a valid, final judgment in a prior
proceeding and could have been raised on appeal in that prior proceeding.” AJZ’s
Hauling, L.L.C. v. TruNorth Warranty Programs of N. America, 2023-Ohio-3097, ¶ 15.
20.
{¶ 48} In this case, because Rockwell did not file exceptions or appeal the probate
court’s judgments approving the accountings, res judicata prevents him from relitigating
McManus’s performance as guardian regarding whether he appropriately approved
expenditures.
{¶ 49} Rockwell’s second assignment of error, therefore, is not well-taken.
C. The trial court did not abuse its discretion when it denied a motion to
amend the complaint where the amendment would be futile.
{¶ 50} In his third assignment of error, Rockwell argues that the trial court abused
its discretion when it denied his motion to amend the complaint to name McManus as the
guardian and to assert the breach of fiduciary claim against him.
{¶ 51} Rockwell relies on Civ.R. 15(B), which applies to amendments to conform
to the evidence.1 It provides, “When issues not raised by the pleadings are tried by
express or implied consent of the parties, they shall be treated in all respects as if they
had been raised in the pleadings.” Civ.R. 15(B). This court has held that “issues raised
for the first time in summary judgment proceedings could constitute an amendment to
prior pleadings under Civ.R. 15(B) if the issue was ‘implicitly tried’ by the parties.”
Lukasiewicz v. Piotrowicz, 2024-Ohio-2754, ¶ 13 (6th Dist.), citing Staniec v. Rosiar,
2021-Ohio-2142, ¶ 23 (6th Dist.). The trial court’s grant or denial of an amendment to a
pleading to include an issue tried by implied consent is reviewed for an abuse of
1
He also cites Civ.R. 15(C), which defines when the amendments relate back to the date
of the original pleading.
21.
discretion. Id., citing State ex rel. Evans v. Bainbridge Twp. Trustees, 5 Ohio St.3d 41,
46 (1983). An abuse of discretion connotes that the trial court’s judgment is
unreasonable, arbitrary, or unconscionable. Id.; Blakemore v. Blakemore, 5 Ohio St.3d
217, 219 (1983).
{¶ 52} Here, McManus expressly did not consent to trying the issue of whether he
breached a fiduciary duty. After Rockwell raised the matter in his opposition to the
motion for summary judgment, McManus directly stated in his reply that the cause of
action was not pled, did not exist, and would not be addressed. The trial court, therefore,
did not abuse its discretion in denying Rockwell’s Civ.R. 15(B) motion to amend the
complaint.
{¶ 53} Alternatively, even if Rockwell moved to amend the complaint pursuant to
Civ.R. 15(A), which permits a party to amend a pleading with leave of court, the trial
court’s denial was not an abuse of discretion because the amendment would have been
futile. See State ex rel. McDougald v. Greene, 2020-Ohio-3686, ¶ 20 (denying motion
for leave to amend the complaint “because the amendment would be futile”); Darby v. A-
Best Products Co., 2004-Ohio-3720, ¶ 36-37 (trial court did not abuse its discretion in
refusing to allow amendment to the complaint to add new party defendants where the
claims against them are “wholly futile”).
{¶ 54} As with his claim for legal malpractice, Rockwell’s claim for breach of
fiduciary duty is based on the premise that McManus improperly submitted receipts to
the probate court and sought approval for expenditures that did not benefit Lauer. This
22.
issue has been conclusively decided by the probate court in its judgments approving the
accountings, and Rockwell did not appeal from any of those judgments. As discussed in
his second assignment of error, res judicata therefore bars Rockwell from pursuing this
issue in his proposed claim for breach of fiduciary duty. As such, his proposed claim of
breach of fiduciary duty is futile. The trial court did not abuse its discretion in denying
his motion to amend the complaint.
{¶ 55} Accordingly, Rockwell’s third assignment of error is not well-taken.
D. The trial court abused its discretion when it denied McManus’s motion for
sanctions without a hearing.
{¶ 56} Turning to McManus’s cross-appeal, he argues that the trial court abused
its discretion when it denied his motion for sanctions under R.C. 2323.51 and Civ.R. 11
without holding a hearing.
{¶ 57} This court reviews a trial court’s ruling on a request for sanctions under
R.C. 2323.51 and Civ.R. 11 for an abuse of discretion. Smith v. Anderson, 2023-Ohio-
108, ¶ 11 (6th Dist.), citing State ex rel. Davis v. Metzger, 2016-Ohio-1026, ¶ 10;
Gallagher v. AMVETS Post 17, 2009-Ohio-6348, ¶ 32 (6th Dist.). “Further, an
evidentiary hearing on a motion for sanctions under either R.C. 2323.51 or Civ.R. 11 is
required only where a motion demonstrates ‘arguable merit.’” Id. at ¶ 12, citing Gitler v.
Cadle Co., 2004-Ohio-220, ¶ 13 (6th Dist.). “In cases where the court has sufficient
knowledge of the circumstances for the denial of the requested relief, it need not waste
judicial resources on hearings that are ‘perfunctory, meaningless, or redundant.’” Gitler
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at ¶ 13, quoting Smith v. Baumgartner, 2002-Ohio-232, ¶ 24 (6th Dist.). Whether a
hearing should be held on a motion for sanctions “is within the sound discretion of the
trial court.” Id. at ¶ 14, citing Ohio Dept. of Adm. Servs. V. Robert P. Madison Internatl.,
Inc., 138 Ohio App.3d 388, 399 (10th Dist. 2000).
{¶ 58} Under R.C. 2323.51(B)(1), “any party adversely affected by frivolous
conduct may file a motion for an award of court costs, reasonable attorney’s fees, and
other reasonable expenses incurred in connection with the civil action or appeal.” R.C.
2323.51(A)(2)(a) defines that conduct is frivolous where
(i) It obviously serves merely to harass or maliciously injure another
party to the civil action or appeal or is for another improper purpose,
including, but not limited to, causing unnecessary delay or a needless
increase in the cost of litigation.
(ii) It is not warranted under existing law, cannot be supported by a
good faith argument for an extension, modification, or reversal of existing
law, or cannot be supported by a good faith argument for the establishment
of new law.
(iii) The conduct consists of allegations or other factual contentions
that have no evidentiary support or, if specifically so identified, are not
likely to have evidentiary support after a reasonable opportunity for further
investigation or discovery.
(iv) The conduct consists of denials or factual contentions that are
not warranted by the evidence or, if specifically so identified, are not
reasonably based on a lack of information or belief.
R.C. 2323.51 employs an objective standard in determining whether sanctions may be
imposed for frivolous conduct. Smith v. Anderson at ¶ 16, citing Stone v. House of Day
Funeral Serv., Inc., 140 Ohio App.3d 713, 721 (6th Dist. 2000).
24.
{¶ 59} In addition, sanctions may be imposed under Civ.R. 11, which provides,
The signature of an attorney or pro se party constitutes a certificate by the
attorney or party that the attorney or party has read the document; that to
the best of the attorney’s or party’s knowledge, information, and belief
there is good ground to support it; and that it is not interposed for delay. If
a document is not signed or is signed with intent to defeat the purpose of
this rule, it may be stricken as sham and false and the action may proceed
as though the document had not been served. For a willful violation of this
rule, an attorney or pro se party, upon motion of a party or upon the court’s
own motion, may be subjected to appropriate action, including an award to
the opposing party of expenses and reasonable attorney fees incurred in
bringing any motion under this rule.
“In determining whether sanctions are warranted under Civ.R. 11, the relevant inquiry is
whether the attorney’s actual intent or belief was willful or merely negligent.” Smith v.
Anderson at ¶ 15, citing Stone at 721.
{¶ 60} Here, McManus identifies three facts in support of his contention that his
motion for sanctions has arguable merit.
{¶ 61} First, despite Rockwell knowing that he was never the attorney for
Rockwell or the Trust, paragraph nine of the complaint states that McManus “acted as
legal counsel and guardian for the [Trust] in Lucas County Probate Court . . ..”
{¶ 62} Second, even if Rockwell had acknowledged that no attorney-client
relationship existed, McManus argues that the complaint for third-party legal malpractice
could only have been brought if Rockwell was in privity with Lauer or if there was fraud
or malice. In support, he cites Scholler v. Scholler, 10 Ohio St.3d 98 (1984), paragraph
one of the syllabus, in which the Ohio Supreme Court held, “An attorney is immune from
liability to third persons arising from his performance as an attorney in good faith on
25.
behalf of, and with the knowledge of his client, unless such third person is in privity with
the client or the attorney acts maliciously.” He contends that Rockwell’s attorney should
have known that as a beneficiary of the Trust subject to complete defeasance he was not
in privity with Lauer or the guardianship. Furthermore, Rockwell did not attempt to
demonstrate fraud or malice in the proceedings below, waiting to raise it for the first time
on appeal.
{¶ 63} Third, and finally, McManus argues that Rockwell should have known that
the issue of his performance as guardian was fully and fairly litigated in the probate court,
and res judicata barred Rockwell from bringing his claims in a new action. McManus
cites Cincinnati Ins. Co. v. Oancea, 2005-Ohio-4872, ¶ 22 (6th Dist.), in which this court
recognized that “filing a claim that is clearly barred by res judicata meets the definition of
frivolous conduct in R.C. 2323.51(A)(2)(a)(ii).” In Oancea, this court held that
“initiating a claim barred by res judicata is ordinarily unwarranted,” and remanded the
matter to the trial court to conduct a hearing to determine whether sanctions should be
imposed. Id. at ¶ 24-25.
{¶ 64} Considering the above, McManus has demonstrated that his motion for
sanctions has arguable merit. The trial court, therefore, erred when it denied McManus’s
motion without a hearing. See Id. This court does not, however, make any finding
regarding whether sanctions are ultimately appropriate in this matter.
{¶ 65} Accordingly, McManus’s assignment of error on cross-appeal is well-
taken.
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IV. Conclusion
{¶ 66} For the foregoing reasons, the judgment of the Lucas County Court of
Common Pleas is affirmed, in part, and reversed, in part. The award of summary
judgment to McManus on Rockwell’s claims is affirmed. The trial court’s judgment
denying McManus’s motion for sanctions is reversed and the matter is remanded to the
trial court for a hearing on the motion. Rockwell is ordered to pay the costs of this appeal
pursuant to App.R. 24.
Judgment affirmed in part,
and reversed in part.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Christine E. Mayle, J.
JUDGE
Myron C. Duhart, J.
JUDGE
Charles E. Sulek, P.J.
CONCUR. JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
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