Mancz v. McHenry
| Decision Date | 15 January 2021 |
| Docket Number | Appellate Case No. 2019-CA-74 |
| Citation | 2021 Ohio 82 |
| Parties | BARRY W. MANCZ, FIDUCIARY OF THE ESTATE OF AUDREY KIRBY Plaintiff-Appellee v. CALLISTA McHENRY, et al. Defendants-Appellants |
| Court | Ohio Court of Appeals |
(Civil Appeal from Common Pleas Court)
OPINIONHARRY G. BEYOGLIDES, JR., Atty. Reg. No. 0018959, 130 West Second Street, Suite 1900, Dayton, Ohio 45402 Attorney for Plaintiff-Appellee
RICHARD A. BOUCHER, Atty. Reg. No. 0033614 and JULIA C. KOLBER, Atty. Reg. No. 0078855, 12 West Monument Avenue, Suite 200, Dayton, Ohio 45402 Attorneys for Defendants-Appellants
{¶ 1} Callista and Robert McHenry appeal from the trial court's decision and judgment entry overruling their objections to a magistrate's decision and entering judgment against them for fraudulently conveying real estate and $127,133 in financial assets.
{¶ 2} The trial court's judgment involves assets that Callista fraudulently conveyed to Robert, her husband, after taking money from her elderly mother for personal use. The record reflects that Callista began serving as attorney-in-fact for her mother, Audrey Kirby, in October 2000. Nearly two years later, Kirby executed a will that provided for her assets to be divided equally among her children, subject to deductions for advances to two children. Kirby also executed a revocable trust agreement. Kirby died in April 2007, leaving 13 surviving children. After one of Kirby's sons resigned as executor of the estate, attorney Barry Mancz was appointed as successor fiduciary.
{¶ 3} In December 2009, Mancz filed a lawsuit in Montgomery County Probate Court, claiming that Callista had breached her fiduciary duties to Kirby's estate by concealing, embezzling, or conveying away estate assets in violation of R.C. 2109.50. Following a hearing, the probate court found Callista guilty of concealing, embezzling, or conveying away estate assets in the amount of $290,975.46. After assessing a 10-percent penalty, the probate court entered judgment against Callista for $320,073.01. On appeal, this court reviewed evidence establishing that while acting as her mother's attorney-in-fact, Callista improperly had moved money from her mother's bank account and certificates of deposit into numerous accounts that were titled in Callista's name or that were held jointly by Callista and Robert. Callista also obtained certificates of deposit in her own name using her mother's assets. The evidence further established that Callista had written hundreds of checks on these accounts apparently for her personal benefit. Although Callista frequently moved the money she took from her mother, this court's examination of the evidence suggested that she in fact had taken more than the amount found by the probate court. This court also rejected an argument that the assets taken by Callista were "gifts" from her mother. Therefore, we affirmed the probate court's judgment against Callista for concealing, embezzling, or conveying away her mother's assets. See Mancz v. McHenry, 2012-Ohio-3285, 974 N.E.2d 784 (2d Dist.).
{¶ 4} In his capacity as fiduciary of Kirby's estate, attorney Mancz filed the present lawsuit against Callista and Robert in March 2015. The complaint alleged that Callista had neither satisfied the judgment in the probate-court case nor returned any of the estate property. The complaint further alleged that Callista had transferred her ownership interest in real estate to her husband Robert while litigation was pending against her by her siblings and prior to the probate-court lawsuit brought by Mancz. The complaint alleged that this transfer was made with actual intent to hinder, delay, or defraud Mancz and other creditors and that the transfer was made without Callista receiving reasonably equivalent value in exchange.
{¶ 5} With regard to personal property, the complaint alleged that Callista had transferred, converted, or concealed bank accounts and other financial interests that were recoverable in furtherance of the judgment in the probate-court case. The complaint alleged that these transfers were made with the intent to avoid the purpose of proceedings under R.C. 2109.50 to R.C. 2109.55 () "or in contemplation of an examination or complaint provided for by those sections." The complaint alleged that the financial transfers from Callista to Robert were fraudulent and void and that Mancz was entitled to an order compelling the return of any and all such proceeds or the value thereof. The complaint specifically requested a judgment ordering the return of property of Kirby's estate that had been conveyed by Callista to herself, to Robert, or to others. The complaint also sought punitive damages.
{¶ 6} The case proceeded to a January 2019 jury trial presided over by a magistrate. Based on the evidence presented, the jury returned a verdict finding that Callista fraudulently had conveyed her interest in real estate to Robert. The jury also returned verdicts against both Callista and Robert for the fraudulent transfer of Kirby's financial assets. The verdicts were accompanied by numerous interrogatory responses, including interrogatories addressing statutory "badges of fraud." With regard to the fraudulent transfer of financial assets, the jury's verdicts found actual damages of $127,133.
{¶ 7} On January 15, 2019, the magistrate entered a decision on the jury verdicts. The magistrate declared void the deed transferring Callista's interest in real estate to Robert. The magistrate also entered judgment against Callista in the amount of $127,133 and against Robert in the same amount. After holding a hearing, the magistrate declined to impose punitive damages on Callista or Robert.
{¶ 8} The McHenrys subsequently raised five objections to the magistrate's decision on the jury verdicts. In a November 13, 2019 decision and judgment entry, the trial court rejected all but one of the objections. With respect to one objection, the trial court found that the magistrate's decision was unclear as to whether judgment had been entered against Callista and Robert for $127,133 each. To avoid "double recovery," the trial court clarified that judgment was entered against Callista and Robert jointly and severally for $127,133. The trial court also declared void the deed transferring Callista's interest in the real estate to her husband. Callista and Robert McHenry timely appealed the trial court's judgment, advancing 13 assignments of error.
{¶ 9} In his appellee's brief, Mancz responds to some of the McHenrys' assignments of error by simply "incorporating by reference" arguments he raised in memoranda and pleadings filed below. In their reply brief, the McHenrys argue that Mancz's extensive reliance on "incorporation by reference" of documents filed in the trial court is inappropriate. Therefore, they urge us not to consider Mancz's arguments that rely on incorporation by reference. Upon review, we agree that wholesale incorporation by reference of arguments raised below is inappropriate and not particularly helpful.1 We note, however, that the McHenrys' own eleventh assignment of error relies exclusively on incorporation by reference of 50 pages of summary-judgment papers they filed in the trial court. Under these circumstances, we will consider the McHenrys' eleventh assignment of error and Mancz's incorporated arguments notwithstanding our disfavor of such an approach.
{¶ 10} For his part, Mancz argues that some of the McHenrys' assignments of error are not properly before us because they are not "addressed by" or "asserted in" the McHenrys' notice of appeal. We find this argument to be unpersuasive. The McHenrysappealed from the trial court's November 13, 2019 Decision and Judgment Entry, which overruled their objections to a magistrate's post-verdict decision and entered final judgment on the jury's verdicts. In our view, the notice of appeal reasonably encompassed the numerous issues and rulings that preceded the trial court's final judgment entry. It was not necessary for the McHenrys to enumerate each of the preceding issues and rulings in their notice of appeal. Having resolved these threshold matters, we turn now to the McHenrys' 13 assignments of error.
{¶ 11} In their first assignment of error, the McHenrys contend the trial court erred in failing to address their objection to the jury's use of inadmissible evidence to determine damages and to the jury's verdict for the fraudulent transfer of financial assets being against the weight of the evidence.
{¶ 12} This assignment of error concerns the McHenrys fifth objection to the magistrate's decision. Therein, the McHenrys argued that the magistrate had erred in entering judgment on the jury's verdicts with respect to the fraudulent transfer of financial assets. In support, the McHenrys asserted that Mancz (who testified as a witness at trial) never identified a certain dollar amount being transferred from any of the accounts at issue. They claimed that Mancz's only effort to establish a specific dollar amount was through the use of improper demonstrative exhibits during closing arguments. The McHenrys further claimed that Mancz failed to identify any money that Robert spent or withdrew from any of the accounts at issue. In fact, the McHenrys argued that Mancz failed to establish that the money was not still in the accounts to which it was transferred. Without evidence that Robert spent the money or that the accounts had a zero balance, the McHenrys questioned how the jury could have found a fraudulent transfer. Therefore, they argued in their fifth objection that the jury's verdicts regarding the fraudulent transfer of financial assets were against the manifest weight of the evidence.
{¶ 13} The trial court rejected the fifth objection, reasoning:
To continue reading
Request your trial