Smith v. Gold-Kaplan

2014 Ohio 1424

JOANN D. SMITH PLAINTIFF-APPELLANT v. ESTHER GOLD-KAPLAN, ET AL. DEFENDANTS-APPELLEES

No. 100015

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

RELEASED AND JOURNALIZED: April 3, 2014

JOURNAL ENTRY AND OPINION

JUDGMENT:

AFFIRMED

Civil Appeal from the

Cuyahoga County Court of Common Pleas

Probate Division

Case No. 2011 ADV 174264

BEFORE: Boyle, A.J., S. Gallagher, J., and E.T. Gallagher, J.

ATTORNEY FOR APPELLANT

Kenneth J. Fisher

Kenneth J. Fisher Co., L.P.A.

ATTORNEY FOR APPELLEE

Steven B. Potter

Dinn, Hochman & Potter, L.L.C.

MARY J. BOYLE, A.J.:

{¶1} In this will-contest case, plaintiff-appellant, Joann Smith, appeals the trial court's decision granting summary judgment in favor of defendant-appellee, Esther Gold-Kaplan. Finding no merit to the appeal, we affirm.

Procedural History and Facts

{¶2} Simon Eidelman ("decedent") died on October 25, 2011. Three days later, decedent's adoptive daughter, Esther, who is also decedent's named executor, filed decedent's last will and testament, dated June 22, 2011. Esther is the sole named beneficiary of the June 22, 2011 will. On December 7, 2011, Joann filed the underlying action, contesting decedent's will.

{¶3} According to Joann's complaint, decedent was a friend who resided at her home for approximately ten years. Joann further alleged that the will dated June 22, 2011, "operated to revoke" decedent's previous will dated March 29, 2011, which named Joann as executrix and sole beneficiary. Joann alleged that the March 29, 2011 will is the only valid will because decedent lacked the necessary testamentary capacity to execute the subsequent will in June 2011. Joann further alleged that the June 22, 2011 will was not valid because it "was the result of undue influence upon decedent."

{¶4} Esther subsequently moved for summary judgment, arguing that (1) decedent's will is presumptively valid, (2) Joann has failed to produce any documents in discovery, including an expert's report, to substantiate her claim of lack of testamentarycapacity, and (3) decedent was not subjected to undue influence. In support of her motion, Esther attached affidavits from the two witnesses to decedent's will — Sandra Buzney, an attorney and licensed social worker, and Gilda Katz, a licensed social worker. Both Buzney and Katz averred that decedent understood the nature and extent of his property, the names of those who held a natural claim to his bounty, and appreciated his relationship with his relatives. Buzney and Katz further averred that decedent was not under duress or undue influence when he executed the will of June 22, 2011. They further averred that neither Esther nor her husband were present at the time that decedent executed his will.

{¶5} Joann opposed the motion, relying primarily on her own affidavit and a letter from Dr. Philipp Dines to Joann's attorney, opining that "by June 22, 2011, it is more likely than not that [decedent] did not manifest testamentary capacity." Joann further argued that Esther had a confidential relationship with decedent and that she used this confidential relationship to hire an attorney on decedent's behalf and to have a new will prepared.

{¶6} Esther filed a reply brief in support of her motion for summary judgment, arguing that Joann failed to comply with Civ.R. 56 in opposing her motion by failing to properly authenticate any of her exhibits or offer Civ.R. 56 evidence. Seven months later, the trial court granted Esther's motion, and this appeal now follows.

{¶7} Joann raises three assignments of error:

I. The Cuyahoga County Court of Common Pleas, Probate Division, erred in granting appellees' motion for summary judgment relative tothe claim that decedent lacked testamentary capacity as genuine issues of material fact are present.

II. The Cuyahoga County Court of Common Pleas, Probate Division, erred in granting appellees' motion for summary judgment relative to the claim that decedent was unduly influenced as genuine issues of material fact are present.

III. The Cuyahoga County Court of Common Pleas, Probate Division, erred in determining the exhibits attached to appellant's opposition to summary judgment were not admissible.

{¶8} For ease of discussion, we will address these assignments of error out of order.

Standard of Review

{¶9} We review an appeal from summary judgment under a de novo standard. Baiko v. Mays, 140 Ohio App.3d 1, 10, 746 N.E.2d 618 (8th Dist.2000). Accordingly, we afford no deference to the trial court's decision and independently review the record to determine whether summary judgment is appropriate. N.E. Ohio Apt. Assn. v. Cuyahoga Cty. Bd. of Commrs., 121 Ohio App.3d 188, 192, 699 N.E.2d 534 (8th Dist.1997).

{¶10} Civ.R. 56(C) provides that before summary judgment may be granted, a court must determine that

(1) no genuine issue as to any material fact remains to be litigated,

(2) the moving party is entitled to judgment as a matter of law, and

(3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing the evidence most strongly in favor of the nonmoving party, that conclusion is adverse to the nonmoving party.

State ex rel. Duganitz v. Ohio Adult Parole Auth., 77 Ohio St.3d 190, 191, 672 N.E.2d 654 (1996).

{¶11} The moving party carries an initial burden of setting forth specific facts that demonstrate his or her entitlement to summary judgment. Dresher v. Burt, 75 Ohio St.3d 280, 292-293, 662 N.E.2d 264 (1996). If the movant fails to meet this burden, summary judgment is not appropriate, but if the movant does meet this burden, summary judgment will be appropriate only if the nonmovant fails to establish the existence of a genuine issue of material fact. Id. at 293.

Admissible Evidence

{¶12} In her third assignment of error, Joann argues that the trial court erred in determining that the exhibits attached to Joann's brief in opposition to Esther's motion for summary judgment were not admissible.

{¶13} Civ.R. 56(C) provides an exclusive list of materials that a trial court may consider when deciding a motion for summary judgment. The rule provides in pertinent part:

Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. No evidence or stipulation may be considered except as stated in this rule.

{¶14} In applying this rule, Ohio courts have consistently held that "if an exhibit or item of evidence does not fall within one of the cited categories of permissible materials, it can only be viewed when it has been incorporated by reference into an affidavit which satisfies Civ.R. 56(E)." McGhan v. Vettel, 11th Dist. Ashtabula No. 2008-A-0036, 2008-Ohio-6063, ¶ 23, citing Skidmore & Assocs. Co., L.P.A. v. Southerland, 89 Ohio App.3d 177, 623 N.E.2d 1259 (9th Dist.1993).

{¶15} Civ.R. 56(E) sets forth the criteria for affidavits as follows:

Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated in the affidavit. Sworn or certified copies of all papers or parts of papers referred to in an affidavit shall be attached to or served with the affidavit.

{¶16} "Documents submitted in defense against a motion for summary judgment must be properly 'sworn, certified or authenticated by affidavit' or they may not be considered in determining whether there is a triable issue of fact." Burkhart v. H.J. Heintz Co., 6th Dist. Wood No. WD-12-008, 2013-Ohio-723, ¶ 12, quoting Green v. B.F. Goodrich Co., 85 Ohio App.3d 223, 228, 619 N.E.2d 497 (9th Dist.1993); see also Douglass v. Salem Comm. Hosp., 153 Ohio App.3d 350, 2003-Ohio-4006, 794 N.E.2d 107, ¶ 25 (7th Dist.). Although the rule appears harsh, Ohio courts consistently apply this rule and recognize that "documents that have not been sworn, certified, or authenticated by way of affidavit 'have no evidentiary value.'" Mitchell v. Internatl. Flavors & Fragrances, Inc., 179 Ohio App.3d 365, 2008-Ohio-3697, 902 N.E.2d 37, ¶ 17 (1st Dist.), quoting Lance Acceptance Corp. v. Claudio, 9th Dist. Lorain No. 02CA008201,2003-Ohio-3503, ¶ 15. In other words, if the documents are not authorized under Civ.R. 56(C), they cannot be considered by the trial court. See Skidmore at 179. One exception to this rule exists — if the opposing party fails to raise an objection to the admission of the documents, the court may in its sound discretion elect to consider the documents. Lytle v. Columbus, 70 Ohio App.3d 99, 104, 590 N.E.2d 421 (10th Dist.1990).

{¶17} Decisions concerning the admission or exclusion of evidence are within the discretion of the court and will not be reversed absent an abuse of that discretion. Beard v. Meridia Huron Hosp., 106 Ohio St.3d 237, 2005-Ohio-4787, 834 N.E.2d 323, ¶ 20. An abuse of discretion is shown when a decision is unreasonable, that is, when there is no sound reasoning process that would support the decision. AAA Ents. v. River Place Community, 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990).

A. Last Will and Testament of Simon Eidelman dated March 29, 2011

{¶18} Joann argues that the trial court erred in refusing to consider the March 29, 2011 will, which was attached to her complaint in compliance with Civ.R. 10(D). We agree. The record reveals that Esther admitted to the existence of the March 29, 2011 will in her answer to the complaint. This evidence therefore complied with Civ.R. 56(C) as being a pleading admission and therefore should have been considered by the trial court. See Skidmore at 179. We find, however, that the exclusion of this evidence amounts to harmless error. Even if the trial court would have considered this will, we find that it...