In re Millstein

• Decision Date: 30 December 2021
• Docket Number: 110546
• Court: Ohio Court of Appeals
• Parties: ESTATE OF JOSHUA MILLSTEIN, DECEASED

2021-Ohio-4610

ESTATE OF JOSHUA MILLSTEIN, DECEASED

No. 110546

Court of Appeals of Ohio, Eighth District, Cuyahoga

December 30, 2021

Civil Appeal from the Cuyahoga County Probate Court Case No 2018EST231387

Hahn Loeser & Parks L.L.P., Dennis R. Rose, and Casey J McElfresh, for appellee Matthew E. Henoch, Administrator of the Estate of Joshua Millstein, Deceased.

Schraff Thomas Law, L.L.C. and John P. Thomas, for appellee Dianne Millstein.

Baker & Hostetler L.L.P., Kevin G. Robertson, and Kevin R McKinnis; Larry Weiser, PA., and Larry Weiser, for appellant, Larry Weiser, Curator of the Estate of Norman Millstein, Deceased.

JOURNAL ENTRY AND OPINION

MARY J. BOYLE, A.J.

{¶ 1} Appellant, Larry Weiser ("Weiser"), Curator of the Estate of Norman Millstein, Deceased ("Norman's Estate"), appeals the judgment of the Cuyahoga County Court of Common Pleas, Probate Division, finding that a settlement agreement that Norman Millstein ("Norman") had entered with the Estate of Joshua Millstein, Deceased ("Joshua's Estate") precluded the probate court from hearing Norman's exceptions to the final accounting of Joshua's Estate, related discovery motions, and a motion to remove appellee Matthew Henoch ("Henoch") as administrator of Joshua's Estate ("Disputed Motions"). Weiser raises three assignments of error for our review:

1. The probate court erred in determining that a settlement agreement reached in unrelated trust litigation precludes Weiser, as Curator of Norman's Estate, from asserting Norman's and, now, Norman's Estate's property rights as beneficiary of Joshua's Estate.

2. The probate court erred in determining that the settlement agreement operated to absolve the probate court of its duty to hear facts and issues raised by Norman and, now, Norman's Estate that may be essential for the probate court to supervise the conduct of Henoch, whom the probate court appointed to administer Joshua's Estate.

3. The probate court erred in determining that the settlement agreement operated to absolve the probate court of its duty to hear and consider facts or issues presented by Norman and, now, Norman's Estate regarding potential breaches of fiduciary duty and/or conflicts of interest that may cause Henoch to be unable to administer Joshua's Estate impartially.

{¶ 2} The first assignment of error is dispositive. The second and third assignments of error are derivative of the first and not well taken. Finding no merit to these assignments of error, we affirm the probate court's judgment.

I. Facts and Procedural History

{¶ 3} On December 23, 2017, Joshua Millstein ("Joshua") died intestate without a spouse or children. Pursuant to R.C. 2105.06(F), Joshua's divorced parents, Norman and Dianne Millstein, were identified as equal beneficiaries of Joshua's Estate.

{¶ 4} On January 18, 2018, Henoch applied to administer Joshua's Estate. Dianne Millstein ("Dianne") consented to Henoch's appointment. Norman initially objected to Henoch's appointment but consented on the condition that Henoch post and maintain a $300, 000 bond and agree to provide Norman and Dianne with copies of all court filings, creditors' claims against Joshua's Estate, tax filings made on behalf of Joshua's Estate, and any information Ohio law requires an administrator of an estate to provide to beneficiaries concerning an estate's assets and liabilities. Henoch was appointed as administrator of Joshua's Estate on March 20, 2018, and posted the required bond the following day.

{¶ 5} On May 11, 2018, DCM Services on behalf of American Express submitted a creditor's claim against Joshua's Estate in the amount of $45, 934.05. On June 29, 2018, PayPal Credit submitted a creditor's claim against Joshua's Estate in the amount of $2, 95843.^[1]

{¶ 6} On August 8, 2018, Henoch filed an initial inventory without appraisal valuing Joshua's Estate's total assets at $194, 358.70, divided between tangible personal property at $180, 106.88 and intangible personal property at $14, 251.82. The probate court set an inventory hearing for August 29, 2018. Norman and Dianne separately received and waived notice of a hearing on the inventory without objecting to the inventory. The probate court approved the inventory on August 30, 2018.

{¶ 7} On September 4, 2018, Henoch posted an additional bond of $90, 000 by order of the court for newly discovered assets. On November 6, 2018, Henoch filed a report of newly discovered assets that included 12 firearms with a total appraised value of $15, 610, which, when combined with an $1, 823 refund from a homeowner's insurance policy, increased the estate's total value to $211, 791.70. On November 13, 2018, the probate court granted the report of newly discovered assets as if reported as part of the initial inventory.

{¶ 8} On January 7, 2019, Henoch filed a satisfaction and release of American Express's creditor's claim of $45, 934.05.

{¶ 9} On May 29, 2019, Henoch filed the final fiduciary account based on the total inventory and moved for extraordinary attorney fees for administering Joshua's Estate. In the motion, Henoch offered several reasons supporting his request for extraordinary fees. First, before his death, Joshua had "maintained a collection of 84 dangerous poisonous snakes," which were illegal, seized, and cared for by the Ohio Department of Agriculture ("ODA"). The ODA made a claim of $24, 000 against Joshua's Estate that Henoch was able to settle for no money from the estate and safe disposition of the snakes. Also, the Pepper Pike Police Department ("PPPD") seized and held Joshua's collection of 12 firearms, including several semi-automatic rifles, which Henoch arranged to have appraised and legally sold pursuant to federal firearm regulations. Further, Joshua had not filed federal, state, or RITA tax returns for the tax years 2015-2017, which Henoch worked with accountants to reconstruct and file. Finally, Norman had initially objected to Henoch's appointment as administrator, which required negotiation to obtain Norman's consent.

{¶ 10} On July 8, 2019, the probate court scheduled a hearing on its own motion to review Henoch's final fiduciary account and ordered that the account be amended to reflect all receipts and disbursements of assets.

{¶ 11} On July 16, 2019, Norman signed a settlement agreement and release ("Settlement Agreement") resolving three different lawsuits Norman had filed against another son, Kevan Millstein ("Kevan"), and various other Millstein parties, and one lawsuit Kevan had filed against Norman to have Norman declared a vexatious litigator.^[2] The Settlement Agreement provided in pertinent part:

10. Norman, for himself and on behalf of his heirs, executors, successors and assigns, hereby fully releases, forever discharge [sic], and covenants not to sue any and every person and entity comprising the Millstein Parties, along with their respective successors, partners, members, managers, owners, assigns, predecessors, parent corporations, subsidiaries, officers, directors, employees, affiliates, agents, and representatives from (and with respect to) any controversies, causes of action, actions, proceedings, claims, suits, arbitrations, damages, judgments, liabilities, or losses related in any way to any matter involving such parties [sic], whether in law or in equity, whether contract or tort, whether fixed or contingent, whether known or unknown, which Norman ever had, now has or hereafter has (except arising from a breach of this Settlement Agreement), shall or may have from the beginning of time, it being the intent of the Parties that the releases and covenants shall encompass all past, present and future disputes and shall be given the broadest possible interpretation.

Joshua's Estate was a named party to the Settlement Agreement.

{¶ 12} The same day, July 16, 2019, Henoch filed an amended motion for extraordinary attorney fees based on the same reasons as the first motion. Neither Norman nor Dianne objected to the amended motion. On July 22, 2019, the probate court granted the motion.

{¶ 13} On August 9, 2019, Henoch filed an amended final fiduciary account, showing an inventory of $211, 791.70, total receipts of $208, 752.17, total administration costs and expenses charged against Joshua's Estate in the amount of $179, 863.53, and total assets of $28, 888.64 to be equally distributed to Norman and Dianne.

{¶ 14} On September 5, 2019, Norman filed several exceptions to Henoch's amended final fiduciary account. Specifically, Norman argued that Henoch's inventory of assets omitted several items, including a significant coin collection and other valuables believed to be stored in Joshua's home safe, several high-definition televisions and computer equipment Joshua was believed to have purchased prior to his death, an antique pool table, several large aquariums and terrariums, and a significant amount of new furniture. Norman believed that these items were not reflected in the miscellaneous household goods and furnishings inventory valued at $500 and another section labeled "video equipment" valued at $5, 906.88. Norman requested a review of Joshua's homeowner's policy to determine if Joshua might have had this personal property itemized under a tangibles rider. Further, Norman requested review of Joshua's credit card statements to determine if the statements included the televisions and computer equipment believed to form part of the $45, 934.05 paid in satisfaction of American Express's creditor's claim.

{¶ 15} Norman also took exception to several disbursements including $10, 000 to Karen Carmen for cleaning Joshua's residence and removing its contents; a substantial sum designated as reimbursement to a Millstein family trust, the Al-Jo Trust, for tax payments on Joshua's...