Widok v. Estate of Wolf

• Court: United States Court of Appeals (Ohio)
• Citation: 2020 Ohio 5178
• Docket Number: No. 108717,108717
• Parties: GERALD A. WIDOK, Plaintiff-Appellant, v. ESTATE OF MARY WOLF, ET AL., Defendants-Appellees.
• Decision Date: 05 November 2020

2020 Ohio 5178

GERALD A. WIDOK, Plaintiff-Appellant,
v.
ESTATE OF MARY WOLF, ET AL., Defendants-Appellees.

No. 108717

COURT OF APPEALS OF OHIO EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

November 5, 2020

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED IN PART, REVERSED IN PART, AND REMANDED

Civil Appeal from the Cuyahoga County Court of Common Pleas
Case No. CV-17-882667

Appearances:

Michael P. Harvey Co., L.P.A., and Michael P. Harvey, for appellant.

Reminger Co., L.P.A., Adam M. Fried, and Timothy J. Gallagher, for appellees Betty Good, William Good, Albert Pickup Jr., Patrick Pickup, and the Estate of Mary Wolf.

Meyers Roman Friedberg & Lewis, L.P.A., and T. Kinsey McInturf, for appellee Joseph Scouloukas.

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EILEEN T. GALLAGHER, A.J.:

{¶ 1} Plaintiff-appellant, Gerald A. Widok ("Widok"), appeals the trial court's decision granting summary judgment in favor of defendants-appellees, the Estate of Mary Wolf ("the Estate"), et al. Widok raises the following assignments of error for review:

1. The trial court erred as a matter of law in dismissing defendant Albert Pickup, Jr., Nettie Pickup, Betty Good, William Good, and Patrick Pickup [from] Counts one through eleven via Ohio Civ.R. 12(B)(6) on August 15, 2018.

2. The trial court erred as a matter of law in dismissing the Estate of Mary Wolf [from] Counts five, nine and eleven of plaintiff's amended complaint pursuant to Ohio Civ.R. 12(B)(6).

3. The trial court erred in dismissing defendant Joe Scouloukas from Counts five, nine and eleven of the Plaintiff's Amended Complaint pursuant to Ohio Civ.R. 12(B)(6) on August 15, 2018.

4. The trial court erred as a matter of law in construing Albert Pickup, Jr., Nettie Pickup, William Good, Betty Good and Patrick Pickup's motion to strike Counts twelve through fourteen of the amended complaint as a motion to dismiss and then granting the motion to dismiss on August 15, 2018.

5. The trial court erred as a matter of law in granting defendant Scouloukas's motion for summary judgment in its entirety on May 28, 2019.

6. The trial court erred as a matter of law in granting the defendant Estate of Mary Wolf's motion for summary judgment in its entirety on May 28, 2019.

7. The trial court erred as a matter of law in determining that the plaintiff failed to prove a material fact in dispute as to Count fourteen of the amended complaint entitled spoliation on May 28, 2019.

8. The trial court erred as a matter of law in determining that spoliation could be dismissed pursuant to summary judgment as no genuine issues of material fact in dispute remained to be tried on May 28, 2019.

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{¶ 2} After careful review of the record and relevant case law, we affirm in part, reverse in part, and remand for further proceedings on the remaining causes of action.

I. Procedural and Factual History

{¶ 3} Widok and his wife, Frances Widok ("Frances"), were long-time friends with Joan Gullace ("Joan") and her husband, Ed Gullace ("Ed"). In the mid-1970s, Ed began experiencing severe pain that, according to Widok, caused Ed to contemplate suicide. (Amended complaint ¶ 16.) Widok testified that he convinced Ed to go to the hospital, where it was discovered that Ed was suffering from a "rare blood disease" that required immediate treatment. (Widok depo. vol. I., at 28-32.) When Ed was released from the hospital, he approached Widok and promised to leave Widok $15,000 in his will for saving his life. (Id.) When Ed died in June 2007, however, Widok did not receive $15,000, and Widok did not file a creditor's claim against Ed's estate.

{¶ 4} Following Ed's death, Widok and Frances continued their close relationship with Joan. Joan accompanied Widok and Frances on vacations, and when necessary, Widok assisted Joan with her day-to-day needs. Widok explained that he "assumed a responsibility [for Joan] as if she was [his] family" because he had promised Ed that he would look after Joan after Ed died. (Id. at 65.)

{¶ 5} Joan died in March 2016. Following her death, Widok held himself out to be the executor of her estate, and began to claim that he and his wife were beneficiaries of a last will and testament that Joan allegedly executed during her

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lifetime. Widok could not recall any specific provisions of this will and admitted that he did not have a written agreement with Joan to be named as a beneficiary in her will. Nevertheless, Widok claimed that Joan "promised [him] $100,000 to take care of her estate." (Amended complaint ¶ 23.) At his deposition, however, Widok admitted that Joan did not expressly state that she would give him $100,000 in her will. (Widok depo. vol. I., at 81.) Rather, Joan stated that Widok and Frances "would be pleasantly surprised" when she passed away. (Widok depo. vol. I., at. 64, 81; Frances Widok depo. at 17.) Frances testified that she believed Joan intended "to take care of us when she died and leave us some of her money." (Frances depo. at 21.) However, Joan "never put a [dollar] figure on it." (Widok depo. vol. I., at 82).

{¶ 6} During their friendship with the Gullaces, Widok and Frances were introduced to Joan's sister, Mary Wolf ("Mary"). When Joan passed away, "[Widok] checked on Mary every morning either by phone or personal visit." (Amended complaint at ¶ 54.) Widok alleged that "Mary relied on [him] for pretty much everything, from taking care of utilities and payments to running around taking care of errands." (Id. at ¶ 55.) Widok described his relationship with Mary as a "pretty good" friendship, particularly after Joan passed away. (Widok depo. vol. I., at 135-136.) In contrast, Mary's personal attorney, Anthony Amato ("Amato"), described Widok's relationship with Mary as manipulative. (Anthony Amato depo. at 36.) In addition, Mary's financial advisor, Joe Scouloukas ("Scouloukas"), her niece-in-law, Betty Good ("Betty"), and her sister-in-law, Nettie Pickup ("Nettie"), each expressed that they did not know Widok to spend any time with Mary until after Joan passed

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away. (Joe Scouloukas depo. at 24; Betty Good depo. at 30-31; Nettie Pickup depo. at 62.)

{¶ 7} Widok testified that he was aware that Joan kept her will inside a desk that was located in her kitchen. (Widok depo. vol. I., at 79.) He stated that only he and Mary knew where the will was located. (Id.) Following Joan's death, however, the will was no longer in Joan's desk. Thereafter, Widok began searching for Joan's will "in a lot of different places and didn't find it." (Id. at 88.) He searched bank security boxes and contacted various attorneys, including Amato, who may have assisted Joan in drafting her will. When his attempts proved unsuccessful, Widok did not file an application to admit a lost will and did not file a creditor's claim against Joan's estate.

{¶ 8} In the absence of a will, Joan died intestate. Mary was Joan's primary beneficiary and next of kin who inherited all of Joan's nonprobate assets. (Widok depo. vol. I., at 235; Scouloukas depo. at 15-16). Widok testified that Mary "knew [he] was looking for a copy of [Joan's] will." (Id. at 96-97.) According to Widok, Mary approached him and proposed "that if [he] stopped looking for the will, she would pay [him] the monies that Joan had promised [him]." (Id.) Widok explained that Mary made this proposal because she understood that Joan did not leave Mary "one penny" in her will. (Id. at 77.) Widok opined that "Mary was scared that [he] would come up with a copy of the will and she would lose her money." (Id. at 144.)

{¶ 9} Widok described Mary's promise as "an oral contract that he would stop looking for the will and she would pay all the monies Joan had promised." (Id. at

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104.) Widok confirmed that he did not personally review Joan's will and did "not know what was in that will." (Id. at 98.) However, Widok expressed to Mary that he "would settle for $100,000 plus the $15,000 Ed had promised [him]," which Mary accepted. (Id. at 105-108.) According to Widok, Mary stated that she would pay him as soon as she sold Joan's home. (Id. at 108.) Widok estimated that he and Mary entered into the oral contract in "June or July 2016." (Id. at 97.) He later stated that the promise may have been made in October 2016. (Id. at 128.) Widok stated that he stopped looking for Joan's will based on Mary's promise. (Id. at 129.)

{¶ 10} Mary passed away in December 2016. Widok testified that Mary confessed to him on her death bed that she retrieved and destroyed Joan's will based on the advice of her financial advisor, Scouloukas. (Widok depo. vol. I., at 86, 96-97.)

{¶ 11} In the months before her death, Mary made approximately nine beneficiary designation changes to her nonprobate assets that were managed by defendant Scouloukas. (Scouloukas depo. at 49.) Widok was never added as a beneficiary to any of those accounts. (Id. at 50.) In addition, Mary never expressed a desire to make any gifts to Widok or to make him a beneficiary. (Id. at 103.) In November 2016, Mary executed a transfer on death designation affidavit, leaving Joan's house to defendants Albert Pickup, Jr. ("Albert"), William Good ("William"), and Patrick Pickup ("Patrick"). In December 2016, Mary executed her last will and testament, naming Albert, William, and Patrick as her beneficiaries. There was no provision for Widok in Mary's last will and testament.

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{¶ 12} On June 7, 2017, Widok filed a claim to assets with the Cuyahoga County probate court, asserting a "claim to the Estate of Mary Wolf in the amount of $100,000 for services rendered and promises made to [Widok], together with all related expenses, interest, costs, fees and as well as a request for accounting by the Estate of monies it held on behalf of the Estate." The claim was also served on the Estate's executor, Amato, who rejected Widok's claim in a letter dated June 8, 2017.

{¶ 13} On July 6, 2017, Widok filed a complaint against the Estate in Cuyahoga C.P. No. CV-17-882667. The complaint set forth causes of action for (1) breach of oral contract, (2)...