Guardianship of Rudy, In re
| Decision Date | 11 December 1992 |
| Docket Number | No. 91-2112,91-2112 |
| Parties | In re Guardianship of RUDY. |
| Court | Ohio Supreme Court |
At the time of the trial court's deliberations, Margaret Rudy was a seventy-eight-year-old widow living at her home in Niles, Ohio. After her husband's death in 1977, she managed their property and other assets. She apparently managed the assets well, at least until sometime in 1988.
By 1988 Mrs. Rudy's health had deteriorated. Her diabetes became worse. She may have developed breast cancer, and she became overweight. Her adopted sons, John and David, had stopped assisting with chores. Further, she testified, a maintenance worker, who had been taking care of her rental properties, stopped helping her. She told a friend she wanted someone to take care of her affairs. Mrs. Rudy asked the friend, but this person declined.
In late 1988, Mrs. Rudy asked the priest of Our Lady of Sorrows church to give her communion. During his visit to her house, she asked if anyone in the church could help her. The priest suggested Peter Burns. Burns, together with his friend Delbert Strawder, agreed to assist. The men cleaned her house and began to help with chores. Mrs. Rudy's health apparently began to improve. The two men monitored her diet. Her blood sugar level and blood pressure improved. She lost one hundred fifty pounds, and was taken to a doctor on a regular basis. She also became more reclusive, and reduced her contact with friends.
For many years, Mrs. Rudy had been represented by attorney Douglas Neuman, and had used the services of stockbroker Donald Rodenbaugh. She became suspicious of both in early 1989. Mrs. Rudy testified that she had requested a testamentary trust, but discovered that her attorney had set up an inter vivos trust naming himself as trustee. Correspondence from the stockbroker led her to believe that hundreds of thousands of dollars had disappeared from her accounts. In addition, several of her stocks had been transferred to a street account without her permission. She was afraid the lawyer and stockbroker might throw her out of her house. Because of her mistrust, Mrs. Rudy transferred assets (including her real estate, automobiles cash and stocks) to Delbert Strawder and Peter Burns. She also made a new will leaving almost everything to Burns and Strawder.
David Rudy, by his attorney, Douglas Neuman, applied for appointment of a guardian in February 1989. In September 1989, Mrs. Rudy's nephew, Lloyd Tompkins, applied to be appointed as her guardian. Upon the applications of Rudy and Tompkins, the probate court appointed John Daily, and later Robert Vesmas, as limited guardian of Mrs. Rudy's estate. The court of appeals affirmed this decision. Shortly before oral argument in this court, Mrs. Rudy died.
Chester, Hoffman, Willcox & Saxbe, John J. Chester, Richard B. Metcalf and James J. Chester, Columbus, for appellant Margaret S. Rudy.
Guarnieri & Secrest and Michael D. Rossi, Warren, for appellee Robert Vesmas.
Ambrosy & Fredericka and James A. Fredericka, Warren, for appellee Lloyd Tompkins.
Westenfield & Neuman and Douglas J. Neuman, Niles, for appellee David W. Rudy.
The issue is whether the appointment of a guardian for Mrs. Rudy complied with Ohio law. We find that it did not. Further, despite Mrs. Rudy's death, we choose not to dismiss the case, because parties on both sides agree that the resolution in this case could affect a potential will contest.
The statute governing guardianships is R.C. 2111.02. R.C. 2111.02(B)(1) states in part: "If the probate court finds it to be in the best interest of an incompetent or minor, it may appoint pursuant to divisions (A) and (C) of this section, on its own motion or on application by an interested party, a limited guardian with specific limited powers." (Emphasis added.) R.C. 2111.02(C)(3) states: "If the hearing concerns the appointment of a guardian or limited guardian for an alleged incompetent, the burden of proving incompetency shall be by clear and convincing evidence." Mrs. Rudy was not a minor. Therefore, before a guardian was appointed, her incompetency had to be proven by clear and convincing evidence.
The probate court held the required hearing and heard the testimony of numerous witnesses. The court made a long list of findings, including the following: that "Mrs. Rudy is receiving medical treatment for a number of infirmities, and will require on-going medical care in the future," that "Mrs. Rudy is receiving and requires the assistance of other persons in order to live in her own home and obtain medical care, and will require such assistance in the future," that...
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