Dechellis v. Dechellis

140 N.E.3d 1193

2019 Ohio 3078

ESTATE OF Philip John DECHELLIS by Ann Heffner, Executrix, Plaintiff-Appellee

v.Patty DECHELLIS, et al., Defendants-Appellants

No. 2018CA00153

Court of Appeals of Ohio, Fifth District, Stark County.

DATE OF JUDGMENT ENTRY: July 29, 2019

MARIO GAITANOS, 437 Market Ave. N., Canton, OH 44702, For Plaintiff-Appellee.

CRAIG T. CONLEY, 604 Huntington Plaza, 220 Market Ave. S., Canton, OH 44702, For Defendants-Appellants.

JUDGES: Hon. W. Scott Gwin, P.J., Hon. Patricia A. Delaney, J., Hon. Craig R. Baldwin, J.

OPINION

Delaney, J.

{¶1} Defendants-Appellants Patty DeChellis and Danny DeChellis appeal the October 10, 2018 judgment entry of the Stark County Court of Common Pleas, Probate Division.

FACTS AND PROCEDURAL HISTORY

The DeChellis Family

{¶2} Philip DeChellis was the patriarch of a large, blended family living in Canton, Ohio. Philip had three children with his first wife: Ann Heffner, Marco DeChellis, and Michael DeChellis. Philip began a 30-year romantic relationship with Defendant-Appellant Patty DeChellis, resulting in the birth of Defendant-Appellant Daniel Patrick Skiba nka Daniel Patrick DeChellis. Philip and Patty divorced their spouses and moved with the children to Ohio in 1986. Philip and Patty never married but cohabited as domestic partners until Philip's death on July 21, 2016.

{¶3} Philip and Patty resided in a home on Lancaster Gate Street, Canton, Ohio. Also residing in the home was Philip's mother, Daniel, Daniel's wife, and Daniel's child. Ann, Marco, and Michael did not have a key to the Lancaster Gate home. Ann and Michael frequently visited their father at the Lancaster Gate home.

The DeChellis Family Business

{¶4} When Philip moved to Ohio in 1986, he took over a pizza shop. The business was originally located on Cleveland Avenue in Canton, Ohio; later, the business relocated to Market Avenue and was named "Napoli's Italian Eatery." Napoli's Italian Eatery is a well-known dining establishment in downtown Canton and is regularly frequented by downtown employees.

{¶5} The DeChellis family have all worked at Napoli's Italian Eatery at some point. Philip managed the business and handled its finances. Patty and Michael supervised the operations of the restaurant.

{¶6} It was well known in the DeChellis family and to Philip's friends that Philip preferred to handle his business and personal finances with cash, not credit. Philip had a distrust of banks. Philip's accountant, Stephen Miller, C.P.A., confirmed that Philip paid his employees with cash and his personal and business expenses with cash whenever possible. Family members observed Philip take cash home from the business in a briefcase on a daily basis. Ann and Michael saw stacks of cash in the Lancaster Gate home. Michael saw his father's safe in his basement office at the Lancaster Gate home. Peter Kazakis, Philip's long-term friend, observed Philip retrieve at least $5,000 in cash from Philip's basement office and bedroom. Philip did not purchase birthday or Christmas gifts for his family; instead, he would give them cash.

{¶7} Due to Philip's exclusive use of cash, his net worth was somewhat of a mystery, even to his accountant. For example, Philip purchased a $279,000 home with $60,512.57 as a down payment. He reported to the bank that he had liquid assets of $86,295.00 but paid off the $232,000 30-year mortgage in four years. Philip drove a Cadillac and owned two vintage Corvettes. Philip paid Patty an allowance that amounted to $26,000 per year. Daniel asked for $26,000 for day-trading and Philip gave him a cashier's check for the money. Philip did not have any business debt. His accountant relied on the information provided from Philip to prepare his tax returns but did not verify the financial integrity of Philip's data. His accountant knew it was not uncommon for cash businesses to under report income.

The Last Will and Testament

{¶8} In 2013, Philip suffered a serious heart attack. In 2015, Philip suffered a stroke and heart attack, resulting in surgery. In 2016, Philip was diagnosed with lung cancer.

{¶9} Philip worked with Attorney Stanley Rubin for business related legal issues. He also retained Attorney Rubin's services for his estate planning. In 2015, Philip told Attorney Rubin multiple times he had $750,000 in cash that upon his death, he wanted to be divided equally between his four children. In April or May 2016, Attorney Rubin attended a family meeting with Philip, Ann, Patty, and Daniel. At the meeting, Philip told those present he had $750,000 in cash that he wanted to divide equally between the four children. Philip did not say at the family meeting where the $750,000 in cash was located or show anyone the $750,000 in cash. In accordance with Philip's wishes, Attorney Rubin prepared a Last Will and Testament with a residuary clause that provided for the equal division of residuary assets among the four children. The Will was signed by Philip on July 19, 2016 and admitted to Probate on August 1, 2016. Philip named Ann as the Executrix.

{¶10} Philip passed away on July 21, 2016. After his death, Ann spoke with Patty regarding the $750,000 in cash to be split among the children. Ann wanted to meet to divide the cash, but Patty delayed the meeting. On September 2, 2016, Ann and her fiancée came to Lancaster Gate home with an appraiser for purposes of executing the Will. During the appraisal of the personal property in the home, Ann observed two of her father's briefcases in his bedroom that appeared to be broken into and empty. She also observed a safe in the bedroom that appeared to be broken into and empty. Ann and the appraiser were not permitted to enter Daniel's room. In her father's basement office, Ann observed the room in disarray and the basement safe was missing. Ann called Attorney Rubin after the September 2, 2016 appraisal because she was upset and felt that Patty and Danny had taken the $750,000 in contravention of her father's will.

The Lawsuits

{¶11} On April 25, 2017, Patty and Daniel filed a complaint in the Stark County Court of Common Pleas, General Division, Case No. 2017CV00858, against Ann, Michael, Marco, and the Estate of Philip J. DeChellis alleging intentional tortious interference with inheritance, failure to pay bills, and intentional interference of emotional distress. The defendants answered and filed a counterclaim against Patty and Daniel, alleging concealment of assets, conversion, and intentional infliction of emotional distress in regard to the $750,000 in cash. In their answer to the counterclaim, Patty and Daniel stated, "Plaintiffs/Counterclaim Defendants invoke their Fifth Amendment right to remain silent in response to allegations in paragraphs 6, 7, 8, 10 and 11 of Defendants' counterclaim for quasi-criminal claims for Concealment of Assets and Conversion." (Answer, July 19, 2017).

{¶12} Case No. 2017CV00858 was voluntarily dismissed by joint stipulation on January 15, 2018.

{¶13} On February 28, 2017, Plaintiff-Appellee Ann Heffner, duly appointed Executrix of Philip J. DeChellis, filed a R.C. 2109.50 concealment of assets action in the Stark County Court of Common Pleas, Probate Division against Respondents-Appellants Patty and Daniel. On April 26, 2017, Ann amended her complaint and requested recovery of $750,000.

{¶14} The matter proceeded to a bench trial on August 29-30, 2018. Ann presented seven witnesses on direct: Ann, Michael, Maria DeChellis, Peter Kazakis, Rodney Dimmerling, Stephen Miller, and Ann's fiancée. Ann presented the testimony of Patty and Daniel on cross examination. During cross, counsel questioned Patty and Daniel about the discovery depositions where they were asked about the location of the cash in the Lancaster Gate home and whether they were in possession of the $750,000 in cash. Both Patty and Daniel invoked their Fifth Amendment rights against self-incrimination. The videotaped depositions of Maria DeChellis, Stephen Miller, and Rodney Dimmerling were viewed by the trial court and incorporated into the trial record. At the conclusion of Ann's case, Patty and Daniel rested without the presentation of evidence.

{¶15} On September 25, 2018, the trial court reconvened the parties and announced its decision on the record. The trial court found Patty and Daniel guilty of having concealed, embezzled, conveyed away, or having been in possession of monies owned by Philip and now belonging to his Estate.

{¶16} On October 10, 2018, the trial court journalized its verdict in its findings of fact and conclusions of law. The trial court rendered judgment in favor of Ann as Executrix, in the amount of $750,000 against Patty and Daniel jointly and severally, with a ten-percent penalty from the date of Philip's death.

{¶17} It is from this judgment Patty and Daniel now appeal.

ASSIGNMENTS OF ERROR

{¶18} DeChellis raises four Assignments of Error:

{¶19} "I. THE TRIAL COURT ERRED IN CONSIDERING AND RELYING UPON INDIRECT EVIDENCE.

{¶20} "II. THE TRIAL COURT ERRED BY ADMITTING, OVER OBJECTION, HEARSAY TESTIMONY.

{¶21} "III. THE TRIAL COURT ERRED BY INCORPORATING, OVER OBJECTION, PLEADINGS AND PRETRIAL DISCOVERY MATERIALS INTO THE TRIAL RECORD.

{¶22} "IV. THE TRIAL COURT'S GUILTY FINDING WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE PRESENTED AT TRIAL."

ANALYSIS

I. R.C. 2109.50

{¶23} A concealment action is brought under R.C. 2109.50 and permits a complaint to be made to the probate court "against any person suspected of having concealed, embezzled, or conveyed away or of being or having been in the possession of any moneys * * * of the estate." R.C. 2109.50. The purpose of R.C. 2109.50 is to provide a speedy and effective method of discovering assets belonging to the estate and securing their recovery. In re the Estate of Gordon , 5th Dist. Richland No. 13-CA-77, 2014-Ohio-2087, 2014 WL 2050349, ¶ 21 citing Wozniak v. Wozniak , 90 Ohio App.3d 400, 629 N.E.2d 500 (9th Dist.1993). It is a quasi-criminal statute requiring a finding of guilty or not guilty. Id. citing ...