Pirock v. Crain
| Decision Date | 09 March 2020 |
| Docket Number | NO. 2019-T-0027,2019-T-0027 |
| Citation | 152 N.E.3d 842,2020 Ohio 869 |
| Parties | Debra PIROCK, et al., Plaintiffs-Appellants, v. Frederick CRAIN, et al., Defendants-Appellees. |
| Court | Ohio Court of Appeals |
David L. Engler, Engler Law Firm, 181 Elm Road, N.E., Warren, Ohio 44483 (For Plaintiffs-Appellants).
Douglas J. Neuman, Neuman Law Office, LLC, 761 North Cedar Avenue, Suite 1, Niles, Ohio 44446 (For Defendant-Appellee Frederick Crain).
Bryan Crain, pro se, 2878 Niles-Vienna Road, Niles, Ohio 44446 (Defendant-Appellee).
{¶1} Appellants, Debra Pirock ("Ms. Pirock"), Jill Sferra ("Ms. Sferra"), Marcia McNelis ("Ms. McNelis"), and Thomas Crain ("Thomas") (collectively, the "plaintiffs"), appeal the judgment of the Trumbull County Court of Common Pleas, Probate Division, granting the motion in limine and the motion to dismiss filed by appellee Frederick Crain ("Frederick") with respect to the plaintiffs' concealment of assets claim against Frederick and appellee Bryan Crain ("Bryan").
{¶2} The parties in this case are the six surviving children of Ralph Crain ("Ralph"), who passed away in June 2014, and Margaret Crain ("Margaret"), who passed away in June 2013. The underlying matter is the latest proceeding in a longstanding dispute between the plaintiffs, on one side, and Frederick and Bryan, on the other side, involving their deceased parents' estates. Specifically, the plaintiffs filed a concealment action under R.C. 2109.50 alleging Frederick and Bryan converted or concealed assets belonging to Ralph's estate, including six strongboxes each allegedly containing $130,000 in cash and six white canvas bags each allegedly containing $366 in coins. The trial court ultimately granted Frederick's motion in limine excluding the plaintiffs' proposed testimony and his motion to dismiss the plaintiffs' concealment action.
{¶3} The plaintiffs assert three assignments of error on appeal. First, they argue that the trial court improperly used a motion in limine to exclude relevant testimony. Second, they argue that the trial court misapplied Evid.R. 804(B)(5) in finding their proposed testimony regarding Ralph's statements constituted inadmissible hearsay. Third, they argue that the trial court had no substantive or procedural basis for dismissing their case against Frederick and Bryan.
{¶4} Upon a careful review of the record and the pertinent law, we find the trial court abused its discretion in granting Frederick's motion in limine. Specifically, the trial court erred procedurally by definitively excluding the plaintiff's prior testimony prior to trial. The trial court also erred substantively by (1) failing to find the plaintiffs' prior testimony regarding Ralph's statements to be admissible under the hearsay exception in Evid.R. 803(3), (2) excluding the plaintiffs' prior testimony on the purported basis of "relevancy" when the trial court's judgment entry demonstrates that it found the evidence to be legally insufficient to establish an element of the plaintiffs' concealment action, and (3) excluding the plaintiffs' prior testimony based on its prior ruling in Margaret's estate proceedings regarding Ralph's mental competency.
{¶5} We also find that the trial court committed reversible error in dismissing the plaintiffs' concealment action. The trial court effectively converted Frederick's motion to dismiss into a motion for summary judgment. We find that the trial court's failure to give the parties formal notice of its conversion was harmless. Based on our de novo review, however, we find that Frederick did not meet his burden on summary judgment to establish that the plaintiffs have no evidence to prove the elements of their claim.
{¶6} Thus, we reverse the judgment of the Trumbull County Court of Common Pleas, Probate Division, and remand for further proceedings consistent with this opinion.
{¶7} This is the fourth occasion for this court to consider matters relating to Ralph's estate. Our prior cases summarize many of the applicable facts.
{¶8} The Crain family is from Weathersfield Township, a rural community in Trumbull County, Ohio. Sferra v. Shepherd , 11th Dist. Trumbull No. 2014-T-0123, 2015-Ohio-2902, 2015 WL 4397429, ¶3. Ralph and Margaret had seven children born from 1950 through 1960: Thomas, Frederick, Marlys, Bryan, Ms. McNelis, Ms. Sferra, and Ms. Pirock. Id. Marlys passed away in 1998. Id. {¶9} Ralph operated a small truck farm and sold the resulting produce from a stand located on his property. In re Estate of Crain , 11th Dist. Trumbull No. 2016-T-0017, 2017-Ohio-2724, 2017 WL 1862647, ¶3. In his earlier years, Ralph had also worked for the government inspecting agricultural land. Id. Tax records indicate the Crains received a gross income of $15,000 to $20,000 per year from the farm. Id. The Crains lived a frugal lifestyle. Id. Ralph was extremely guarded concerning his financial affairs, which he ran from a small office in the farmhouse that he kept locked. Id.
{¶10} The plaintiffs' underlying concealment action alleges, in part, the existence of six strongboxes owned by Ralph that each contain $130,000 in cash. The plaintiffs allege that they saw these items on separate occasions.
{¶11} Thomas alleges that his mother took him into the office in 2010 when Ralph was hospitalized for pneumonia
. Id. at ¶4. There were six strongboxes in the office, and his mother opened one, showing him it contained $130,000 in carefully wrapped cash. Id. His mother stated that all six boxes contained the same amount of money, evidently as gifts to the six Crain children. Id.
{¶12} Ms. McNelis alleges that her father brought her into his office in March 2011 where there were six strongboxes. Id. at ¶5. Her father opened one and showed her there was $130,000 in cash inside. Id. Her father stated that all six boxes contained the same amount and were intended for the Crain children. Id. Ms. McNelis also alleges that she last discussed the cash with her father on June 13, 2013.
{¶13} Ms. Sferra alleges that in February 2011, she and her parents took three of the six strongboxes from the office and counted the money contained inside. Id. at ¶6. Each contained $130,000. Id. Her father told her each box contained the same amount and were meant for the six Crain children. Id.
{¶14} Ms. Pirock alleges that she last saw the boxes in her father's office in May 2013. She also alleges possession of a letter from her father dated May 31, 2013 that indicated he was giving the boxes to Frederick until he asked for them to be returned unopened.
{¶15} The plaintiffs asserted serious allegations that Frederick and Bryan unduly influenced Ralph. These allegations included that Frederick and Bryan physically and socially isolated Ralph from the plaintiffs and his grandchildren and engaged in intimidation tactics to assert control over Ralph and his personal affairs, resulting in Ralph changing his estate plan to benefit Frederick and Bryan. See Sferra at ¶47, 50-58. According to Frederick and Bryan, their father wanted limited contact with the plaintiffs. Estate of Crain at ¶8.
{¶16} Frederick says his father brought four strongboxes to him in May 2013, which he locked in his gun safe. Id. at ¶7. After his father's death, he turned the boxes over to Attorney David L. Shepherd ("Attorney Shepherd"), whom the Trumbull County Court of Common Pleas, Probate Division (the "probate court"), had appointed as Special Administrator WWA for Ralph's estate. Id.
{¶17} According to Attorney Shepherd, the four boxes he received from Frederick contained legal documents and $20,379.80 in cash. Id. Frederick was present during the inventory of the four boxes, as was an associate of Attorney Douglas J. Neuman ("Attorney Neuman"), who was and remains Frederick's counsel. Attorney Shepherd stated that he had extended an invitation to the plaintiffs' former counsel, Attorney Michael Rossi ("Attorney Rossi"), for the plaintiffs to attend the inventory, but none of them appeared. Ms. Sferra and Thomas testified that they sat in the waiting room of Attorney Rossi's office for several hours expecting a telephone call from Attorney Shepard to attend the inventory. When Attorney Rossi finally directed Ms. Sferra to go to Attorney Shepherd's office, the money had already been counted.
{¶18} The plaintiffs have filed a variety of proceedings involving their parents' estates, some of which have involved Ralph's alleged cash.
{¶19} After Margaret passed away in June 2013, the plaintiffs filed an objection in the probate court to the appointment of Ralph as the executor of her estate, alleging that Ralph was not mentally competent. In March 2014, the probate court overruled the objection and appointed Ralph and Attorney Daniel Letson to serve as co-commissioners of Margaret's estate. Ralph passed away approximately three months later in June 2014.
{¶20} According to Frederick's brief, the plaintiffs filed a concealment action in Margaret's estate in July 2014 concerning "essentially the same missing assets," which the probate court dismissed in December 2015 for the plaintiffs' failure to put on any evidence in support of their claims.1
{¶21} In November 2014, the plaintiffs filed exceptions to the inventory and appraisal in Margaret's estate, alleging that it should include an undivided one-half interest in Ralph's alleged cash. Following a hearing, the probate court dismissed the exceptions in September 2015, finding no credible evidence that any money in the house was the property of Margaret or was in her possession at the time of her death.
{¶22} Attorney Neuman represented Ralph prior to his death and prepared his will in April 2013. McNelis v. Crain , 11th Dist. Trumbull, 2016-Ohio-8523, 78 N.E.3d 1237, ¶2. Under this will, each of his six surviving children stood to inherit from his estate equally. Id. Later, Ralph...
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Pirock v. Crain
...of their concealment action. We reversed the trial court's judgment and remanded for further proceedings in Pirock v. Crain , 2020-Ohio-869, 152 N.E.3d 842 (11th Dist.), appeal not accepted , 159 Ohio St.3d 1465, 2020-Ohio-3882, 150 N.E.3d 112.{¶28} On remand, the matter was tried to a jury......