Meek v. Geneva
| Decision Date | 27 September 2017 |
| Docket Number | No. 2017 AP 01 0001,2017 AP 01 0001 |
| Citation | 2017 Ohio 7975,98 N.E.3d 907 |
| Parties | Kevin MEEK, et al., Plaintiff–Appellee v. Samuel GENEVA, et al., Defendant–Appellant |
| Court | Ohio Court of Appeals |
BRETT M. MANCINO, 75 Public Square, Suite 1016, Cleveland, OH 44113, for Appellee.
JOSEPH I. TRIPODI, 114 East High Avenue, New Philadelphia, OH 44663, for Plaintiffs.
RALPH F. DUBLIKAR, 400 South Main St., North Canton, OH 44620, BRAD L. HILLYER, 201 N. Main St., P.O. Box 272, Uhrichsville, OH 44683, for Appellant.
{¶ 1} Appellant, James Weaver, Executor of the Estate of Samuel Geneva appeals the December 9, 2016 judgment entry of the Tuscarawas County Court of Common Pleas.
{¶ 2} On August 1, 1994, Samuel Geneva was operating his motor vehicle in Tuscarawas County, Ohio, while under the influence of alcohol. His vehicle travelled left of center and struck a motor vehicle driven by Helen Lucille Meek. Kevin Meek and Jeremy Belt were passengers in Ms. Meek's vehicle at the time of the collision. Ms. Meek sustained massive injuries and died from those injuries. Kevin Meek and Jeremy Belt suffered multiple injuries, but survived the collision.
{¶ 3} A jury convicted Geneva of aggravated vehicular homicide and aggravated vehicular assault on February 1, 1995. The trial court sentenced Geneva to eight to thirteen years in prison.
{¶ 4} In September 1996, Kevin Meek and Jeremy Belt filed complaints in the Tuscarawas County Court of Common Pleas requesting an award of compensatory and punitive damages against Geneva. Appellee, attorney Paul Mancino, Jr. represented Geneva in the tort action.
{¶ 5} On September 17, 1997, the trial court granted summary judgment in favor of Meek and Belt, finding Geneva liable for negligently and recklessly causing physical harm to Meek and Belt. The amount of damages was left to be determined.
{¶ 6} On February 11, 1999, Meek and Belt filed a motion to enjoin Geneva, or anyone acting on his behalf, from removing funds during the pendency of the tort action. The trial court issued an ex parte restraining order on February 12, 1999. The matter came on for a full hearing on February 18, 1999. At the hearing, the following facts were adduced.
{¶ 7} Geneva was the owner of a checking account held at the First National Bank of Dennison, Ohio. Geneva had given a power of attorney to Appellant, James Weaver, who maintained the checking account. On January 20, 1999, Geneva directed Weaver by typewritten correspondence to withdraw the balance of the checking account and forward it to Geneva's attorney, Mancino. In the letter directing the withdrawal of the balance of the account, there was a handwritten request to Weaver that he forward the amount of $37,500 to Mancino "or you will be removed from my account as my Power of Attorney." Weaver received a handwritten letter from Geneva, which indicated it was the intention of Geneva to hide his assets during the tort litigation. Weaver followed Geneva's instructions, withdrew $37,500 from the checking account, and sent a cashier's check to Mancino, payable to Mancino.
{¶ 8} The trial court issued a judgment entry on February 24, 1999 that found Geneva's request for transfer of funds was intended to hinder or defraud the creditors. The trial court restrained Geneva and Weaver from moving, removing, spending, or otherwise disposing of funds in his possession, held in Geneva's or otherwise held on Geneva's behalf until further order of the trial court. The trial court ordered:
(Emphasis sic.) (Judgment Entry, Feb. 24, 1999).
{¶ 9} Mancino filed a notice of appeal of the February 24, 1999 judgment entry with this court. We dismissed the appeal on July 22, 1999 for lack of a final appealable order.
{¶ 10} On April 20, 1999, the trial court held a hearing on the issue of damages. Mancino represented Geneva at the hearing.
{¶ 11} On May 5, 1999, Geneva granted Mancino a power of attorney, making Mancino his attorney-in-fact. Geneva removed Weaver as his power of attorney.
{¶ 12} The trial court issued its judgment entry on May 28, 1999 awarding damages in favor of Meek and Belt. The trial court awarded $362,500 in compensatory damages to Meek, $257,500 in compensatory damages to Belt, $100,000 in punitive damages to Meek, and $100,000 in punitive damages to Belt.
{¶ 13} In the May 28, 1999 judgment entry, the trial court specifically incorporated the February 24, 1999 judgment entry, which included the provision ordering Geneva to return the $37,500 transferred to Mancino to the First National Bank of Dennison. The trial court stated that (Judgment Entry, May 28, 1999). The trial court ordered that the February 24, 1999 judgment entry be incorporated by reference and the orders on the restraint of funds remained in full force and effect until further order of the trial court.
{¶ 14} Geneva did not appeal the May 28, 1999 judgment entry.
{¶ 15} Geneva died on December 7, 2014. An estate was opened for Geneva on February 4, 2015 and Weaver was appointed Executor of his estate. On August 26, 2015, Belt and Meek as judgment creditors of Geneva filed claims against the estate totaling over $820,000. In re Estate of Geneva , 5th Dist. Tuscarawas No. 2016 AP 02 0013, 2016-Ohio-5382, 2016 WL 4362862, ¶ 4.
{¶ 16} On December 7, 2015, the probate court issued an order finding the Estate of Geneva was the owner of whatever remained of the $37,500 transferred to Mancino in 1999 and it was Weaver's duty as executor to recover the estate asset. Id. at ¶ 5. Weaver issued a subpoena to Mancino to appear and testify at a hearing on January 14, 2016. The subpoena also ordered Mancino to bring: all records relating to the $37,500 paid to him by Geneva/Weaver in 1998/1999; proof that the finds were returned to Geneva or a cashier's check made payable to the Estate of Geneva in the amount of $37,500; and all trust records, law firm deposits, account statements, disbursement receipts, transfer records to Mancino or his law firm, or any other person relating to these funds. Id. at ¶ 6.
{¶ 17} Mancino filed a motion to quash subpoena, which the probate court overruled. Mancino filed a second motion to quash subpoena. Weaver filed a motion on January 13, 2016 indicating Mancino's office may have been receiving approximately $2,000 per month from the State Teacher's Retirement System ("STRS") for Geneva that was sent to a bank in Virginia. Id. at ¶ 7. The probate court overruled Mancino's second motion to quash and denied a motion to set aside a magistrate's order. Id. at ¶ 8.
{¶ 18} The hearing was held before the probate court magistrate on January 22, 2016. Mancino testified the checks he received for Geneva from 1999–2006 were sent to Geneva. Mancino stated he cashed the checks and mailed the money to Geneva in prison. Mancino then testified Geneva authorized him to keep some of the funds for his ongoing attorney fee bill and Geneva wanted some of the money sent to other people, which Mancino stated he did. Mancino did not return the $37,500 because he deemed the order telling him to do so void. Mancino did not have records or invoices to show the amount of his attorney fees. Id. at ¶ 9.
{¶ 19} On January 26, 2016, the magistrate issued an order for Mancino to turn over relevant client escrow records pertaining to his transactions with and for Geneva. The trial court overruled Mancino's motion to set aside the magistrate's order and adopted the order. Id. at ¶ 11.
{¶ 20} Mancino appealed the trial court's order to this Court in In re Estate of Geneva , 5th Dist. Tuscarawas No. 2016 AP 02 0013, 2016-Ohio-5382, 2016 WL 4362862. On August 15, 2016, we overruled Mancino's arguments and affirmed the judgment of the probate court. Mancino first argued the trial court abused its discretion when it denied his motions to quash the subpoena because he was not a party to the case and no action was pending other than Geneva's estate case. Id. at ¶ 16. We disagreed and found that Civ.R. 45 allowed subpoenas to be issued to nonparties. Id. We next overruled Mancino's argument that the subpoena was unduly burdensome. Id. at ¶ 17. We found the Estate of Geneva showed a substantial need for the testimony and production of documents. The trial court ordered the funds be returned to the First National Bank of Dennison and Mancino did not return the funds. Id. Because the executor was charged with collecting and distributing the estate assets to Geneva's creditors, Mancino's testimony and records were necessary to determine whether the assets were property of Geneva's estate. Id.
{¶ 21} On May 6, 2016, Weaver filed a Motion for Order to Show Cause against Mancino in the original civil proceedings, Case Nos. 1996 CT 09 0390 and 1996 CT 09 0391. Mancino filed a Motion to Dismiss and Objection to Motion to Show Cause.
{¶ 22} Mancino also filed Petition for...
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