Demeraski v. Bailey

Decision Date04 June 2015
Docket NumberNo. 102304.,102304.
Citation35 N.E.3d 913
PartiesJennifer J. DEMERASKI, Plaintiff–Appellant v. John R. BAILEY, Executor, et al., Defendants–Appellants.
CourtOhio Court of Appeals

Anthony W. Kerber, Anthony W. Kerber Co., L.P.A., John L. Reulbach Jr., Lakewood, OH, for Appellant.

Kevin T. O'Connor, Laura E. Englehart, Kohrman Jackson & Krantz P.L.L., Cleveland, OH, for John R. Bailey.

Algis Sirvaitis, Algis Sirvaitis & Company, Cleveland, OH, for James P. Bailey.

Amanda M. Buzo, Wegman, Hessler & Venderburg, Cleveland, OH, for Mary Gail Burnson.

Before: E.A. GALLAGHER, P.J., BOYLE, J., and BLACKMON, J.

Opinion

EILEEN A. GALLAGHER, P.J.

{¶ 1} In this accelerated appeal, plaintiff-appellant Jennifer Demeraski appeals from the dismissal of her complaint to construe the will of James Phillip Bailey, III (Bailey) pursuant to Civ.R. 12(B)(6). Finding merit to the appeal, we reverse the judgment of the probate court and remand the case for further proceedings.

Factual and Procedural Background

{¶ 2} Demeraski is the natural born daughter of Bailey and Gail Elaine Bailey. Until she was five years old, she was known by her legal birth name, Jennifer Joan Bailey. Shortly after her fifth birthday, following her parents' divorce and her mother's remarriage to James Jaworski, Demeraski's name was legally changed, with Bailey's consent, to Jennifer Joan Jaworski. There was no adoption of Jennifer by Jaworski. When she later married, she changed her surname to Demeraski.

{¶ 3} Bailey died testate on October 24, 2012. His will was probated by the Cuyahoga County Court of Common Pleas, Probate Division (the “probate court) on November 15, 2012. By operation of a residuary clause, the will disposed of the residue of Bailey's estate as follows:

4.1 All the rest, residue and remainder of my property (including any interest in J.B. Stamping, Inc. and Lucky 13) shall be liquidated within two (2) years after my death and the proceeds of such property shall be apportioned in equal shares among my children who survive me and shall be distributed to them: JAMES P. BAILEY, IV, JOHN R. BAILEY, JEFFREY W. BAILEY, JERALD M. BAILEY, JILL SHANTZLIN, JANET KRUSE, J. PHILIP BAILEY and JASON L. BAILEY.

{¶ 4} With respect to Bailey's “children,” paragraphs 6.2 and 6.3 of the will further provided:

6.2. Presently, I have eight (8) children, namely, JAMES P. BAILEY, IV, JOHN R. BAILEY, JEFFREY W. BAILEY, JERALD M. BAILEY, JILL SHANTZLIN, JANET KRUSE, J. PHILIP BAILEY, JASON L. BAILEY, all of whom are adults.
6.3 The words “child,” “children,” and “issue” as used herein include persons whose relationship is such by adoption as well as issue of such adopted person. No person who is otherwise a child or issue of mine shall lose his or her status as such by being adopted by another person.

{¶ 5} On May 12, 2014, Demeraski filed a complaint for declaratory judgment against John R. Bailey, executor of Bailey's estate (the executor), and the beneficiaries of the estate, seeking (1) a declaration that she was Bailey's daughter and was entitled to inherit an equal share of Bailey's residuary estate under the will, and (2) an order requiring the executor to distribute the residuary estate accordingly. Although she was not specifically named in the will, Demeraski claimed that she was entitled to inherit a share of Bailey's residuary estate as one of Bailey's surviving “children” under paragraphs 4.1 and 6.3 of the will. Demeraski further alleged that she had not received notice of the probating of Bailey's will and that she would have inherited as Bailey's daughter under Ohio's statutes of descent and distribution had Bailey died intestate.

{¶ 6} In support of her claim, Demeraski attached to her complaint a copy of Bailey's will and copies of various documents establishing that she was Bailey's daughter, including her birth certificate, various applications for marriage licenses referencing Bailey's marriage to Demeraski's mother, documentation relating to Demeraski's name change and Bailey's consent to her name change and a stipulation by the executor that Demeraski was Bailey's daughter.

{¶ 7} On July 23, 2014, the executor filed a motion to dismiss the complaint pursuant to Civ.R. 12(B)(6) for failure to state a claim for which relief can be granted. The executor argued that although Demeraski was Bailey's biological daughter, she was not entitled to inherit under the will because the plain language of the will indicates: (1) Bailey intended to disinherit Demeraski by necessary implication by excluding her from the will and specifically naming all of his other children as beneficiaries of his residuary estate, and (2) Bailey did not intend to make a class gift of his residuary estate to his children.

{¶ 8} Demeraski opposed the motion. On November 6, 2014, the probate court granted the motion to dismiss, concluding that Demeraski could prove no set of facts that would entitle her to take under Bailey's will and entered a judgment entry dismissing the complaint. Relying on this court's decision in Belardo v. Belardo, 187 Ohio App.3d 9, 2010-Ohio-1758, 930 N.E.2d 862 (8th Dist.), the probate court held that because Demeraski was not among the children Bailey had listed by name in his will as the beneficiaries of his residuary estate, Demeraski needed to establish that Bailey intended to make a class gift of his residuary estate to his children (rather than individual gifts to the children specifically named), in order to share in his estate under the residuary clause. The probate court held that because the will's residuary clause specifically designated eight of Bailey's children by name, it did not manifest an intent to create a class gift and was “a gift to them as individuals and not as a class.” In so holding, the probate court rejected Demeraski's argument (based on the language in paragraph 6.3 of the will) that Bailey had mistakenly believed that Demeraski had been adopted by her stepfather and had included the language in paragraph 6.3 to ensure that Demeraski would share in his residuary estate as one of his children. The probate court reasoned that even if Bailey had mistakenly believed that Demeraski had been adopted by her stepfather, paragraph 6.3 of the will did not apply to her because she was not, in fact, adopted.

{¶ 9} Demeraski appealed the probate court's judgment, raising the following assignment of error for review:

The Lower Court committed prejudicial error by dismissing PlaintiffAppellant's Complaint for Declaratory Judgment, without a hearing, based upon a misreading of Belardo and a corresponding misinterpretation and/or disregard of provision in the underlying will which demonstrated that the Testator's likely intent was not to make a gift to specifically-named children, but rather, to create a class gift that included PlaintiffAppellant, a natural-born daughter thereof, whom the Testator thought had been adopted.
Law and Analysis
Standard of Review

{¶ 10} A Civ.R. 12(B)(6) motion to dismiss for failure to state a claim tests the sufficiency of the complaint. Antoon v. Cleveland Clinic Found., 8th Dist. Cuyahoga No. 101373, 2015-Ohio-421, 2015 WL 501239, ¶ 7. An action for a declaratory judgment may be dismissed pursuant to Civ.R. 12(B)(6) where (1) ‘there is no real controversy or justiciable issue between the parties' or (2) ‘the declaratory judgment will not terminate the uncertainty or controversy.’ High St. Properties v. Cleveland, 8th Dist. Cuyahoga No. 101585, 2015-Ohio-1451, 2015 WL 1738016, ¶ 28, quoting Home Builders Assn. of Dayton & Miami Valley v. Lebanon, 12th Dist. Warren No. CA2003–12–115, 2004-Ohio-4526, 2004 WL 1918930, ¶ 13. “In order for a justiciable question to exist, [t]he danger or dilemma of the plaintiff must be present, not contingent on the happening of hypothetical future events * * * and the threat to his position must be actual and genuine and not merely possible or remote.’ High St. Properties at ¶ 29, quoting Mid–Am. Fire & Cas. Co. v. Heasley, 113 Ohio St.3d 133, 2007-Ohio-1248, 863 N.E.2d 142, ¶ 9. A “controversy” exists for purposes of a declaratory judgment action “when there is a genuine dispute between parties having adverse legal interest of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.” High St. Properties at ¶ 29, citing Brewer v. Middletown, 12th Dist. Butler No. CA91–02–039, 1992 WL 185691, *4 (Aug. 3, 1992), citing Burger Brewing Co. v. Liquor Control Comm., 34 Ohio St.2d 93, 296 N.E.2d 261 (1973).

{¶ 11} The probate court dismissed Demeraski's complaint under Civ.R. 12(B)(6) after determining, based on its construction of the will, that Demeraski could prove no set of facts that would entitle her to a share of Bailey's residuary estate. A lower court's determination that a plaintiff can prove no set of facts that would entitle the plaintiff to relief is reviewed de novo, requiring the appellate court to undertake an independent analysis without deference to the lower court's decision. Perrysburg Twp. v. Rossford, 103 Ohio St.3d 79, 2004-Ohio-4362, 814 N.E.2d 44, ¶ 5 ; Hendrickson v. Haven Place, Inc., 8th Dist. Cuyahoga No. 100816, 2014-Ohio-3726, 2014 WL 4261947, ¶ 12. A probate court's construction of a will is likewise reviewed on a de novo basis. Belardo, 187 Ohio App.3d 9, 2010-Ohio-1758, 930 N.E.2d 862, at ¶ 7, citing Church v. Morgan, 115 Ohio App.3d 477, 481, 685 N.E.2d 809 (4th Dist.1996).

{¶ 12} In deciding whether a complaint should be dismissed pursuant to Civ.R. 12(B)(6), the court's review is limited to the four corners of the complaint along with any documents properly attached to or incorporated within the complaint. High St. Properties at ¶ 17, citing Glazer v. Chase Home Fin. L.L.C., 8th Dist. Cuyahoga Nos. 99875 and 99736, 2013-Ohio-5589, 2013 WL 7869273, ¶ 38. The court accepts as true all the material factual allegations of the complaint and construes all reasonable inferences to be drawn from...

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