[Cite as In re Estate of Beverly, 2013-Ohio-1498.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                                SENECA COUNTY



IN THE MATTER OF:
                                                           CASE NO. 13-12-28
        THE ESTATE OF
        GILMER J. BEVERLY,
                                                           OPINION
[CHARLOTTE SAUBER, ET AL.,
APPELLANTS].


IN THE MATTER OF:
                                                           CASE NO. 13-12-29
        THE ESTATE OF
        GILMER J. BEVERLY,
                                                           OPINION
[CHARLOTTE SAUBER, ET AL.,
APPELLANTS].


                 Appeals from Seneca County Common Pleas Court
                                 Probate Division
                     Trial Court Nos. 20121080 and 20121122

                                      Judgments Affirmed

                              Date of Decision: April 15, 2013



APPEARANCES:

        Kelton K. Smith for Appellants

        Timothy J. Hoover for Appellee
Case Nos. 13-12-28, 13-12-19


ROGERS, J.

       {¶1} Appellants, Andrea Stauffer and Charlotte Sauber (collectively,

“Appellants”), appeal the judgment of the Seneca County Court of Common Pleas,

Probate Division, naming Appellee, Paula Jackson, the administrator of the estate

of Gilmer Beverly (the “Estate”). On appeal, Appellants argue that the trial court

erred in admitting Jackson’s testimony regarding certain hearsay statements made

by Beverly before his death. For the reasons that follow, we affirm the trial

court’s judgment.

       {¶2} Beverly died intestate on March 6, 2012 and was survived by four

daughters, Appellants, Jackson, and Audrey Beverly (“Audrey”).         Appellants

applied to be joint fiduciaries of the Estate while Jackson applied to be the sole

fiduciary. The trial court conducted a hearing on May 14, 2012 to resolve the

Appellants’ and Jackson’s competing applications.        The following relevant

evidence was adduced at the hearing.

       {¶3} First, Thomas Sullivan, a financial sales consultant with PNC Bank,

testified regarding a banking power of attorney (“Banking POA”) that was

executed by Beverly on August 29, 2011. The Banking POA named Jackson as

Beverly’s agent for all of his bank accounts. Sullivan advised Beverly that he

could dismiss Jackson whenever he wanted from her role as his Banking POA, but

he never did so.


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Case Nos. 13-12-28, 13-12-19


       {¶4} Paula Jackson was then called to the stand for the first time by

Appellants’ counsel.     She testified, as on cross-examination, regarding her

activities as Beverly’s Banking POA. She also stated that Beverly executed a

health care power of attorney (“Health Care POA”) that named her as his agent.

       {¶5} Jackson indicated that she managed Beverly’s financial affairs by

writing out checks and ensuring that his bills were paid. Jackson also stated that

she never signed the checks written on Beverly’s accounts, but that she left that to

her father.   Further, she said that she kept her father informed as to the

management of his financial affairs.

       {¶6} Jackson testified that based on her handling of Beverly’s financial

affairs from August 2011 until his death, she believed that she was “better suited”

to serve as the Estate’s administrator and that her father trusted her. Tr., p. 18. To

prove her knowledge of the Estate, Jackson testified as to the extent of Beverly’s

assets and his lack of debts. She also indicated that she was capable of handling

her personal finances in a satisfactory manner and that she had a college degree in

nursing.

       {¶7} Jackson also testified that she did not use Beverly’s funds for her

personal purposes or for any other purposes besides those relating to her father.

Further, she noted that she maintained exhaustive records of Beverly’s financial

transactions that occurred after February 2011. After providing this testimony,


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Case Nos. 13-12-28, 13-12-19


Jackson authenticated a variety of these records, which were admitted into

evidence. A review of these records reveals that many of the deductions from

Beverly’s accounts are accounted for with receipts. The records also reveal that

after Beverly executed the Banking POA and Jackson started to handle his

finances, his account balances increased until his death.

       {¶8} Once Jackson stepped down, Audrey testified that she trusted Jackson

to serve as the administrator of the Estate. Audrey also indicated that she had

trusted Jackson to deposit a significant amount of her own money while she was in

the process of buying a new house. On re-cross examination, Audrey stated that

she would not have trusted Appellants in such a situation.

       {¶9} Stauffer was then called to the stand by Appellants’ counsel. She

admitted that she was not bonded at the time of the hearing but also stated that she

was in the process of obtaining a bond. Her counsel then elicited information

regarding Beverly’s trust of Jackson during his lifetime:

       Q: [W]hat had your father said to you about his trust of [Jackson]
       prior to his death * * *?

       A:   He did not trust her.

       Q:   As far as just trust in her?

       A: He was concerned that she was – there was money she wasn’t
       accounting for. He was concerned. He was afraid of [Jackson].
       Like I said there was some concern. It was brought to my attention
       that she was not handling his funds appropriately. Tr., p. 72.


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Case Nos. 13-12-28, 13-12-19


      {¶10} According to Stauffer’s testimony, Beverly lived with her for

approximately a year before he moved in with Jackson. Stauffer indicated that

when Beverly moved out, he showed her his checkbook and that she remembered

it showing a balance of approximately $98,000.00. However, after Beverly moved

in with Jackson and she started to manage his affairs, Stauffer learned that

Beverly’s balance in his checking around was approximately $35,000.00. Stauffer

also stated that Jackson had a new boat and jet skis, which led Beverly to “voice

concern” regarding the funding for the purchases. Tr., p. 82.

      {¶11} Sauber also testified and indicated that she did not trust Jackson to

properly handle the Estate.     Sauber said that Jackson had failed to consult

Appellants in a variety of her father’s dealings, including his admission to the

nursing home before his death and the execution of the POAs in Jackson’s favor.

Appellants’ counsel also elicited testimony from Sauber regarding Beverly’s trust

of Jackson:

      Q: And did you have discussions with your father prior to his
      death about whether he trusted [Jackson] to handle his affairs?

      A:      Yes.

      Q: And what did your father say to you regarding whether or not
      he trusted Paula to handle his affairs?

      ***

      A: He told me that – I asked him why he signed the power of
      attorney forms if he didn’t trust her which he had told me he did not

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Case Nos. 13-12-28, 13-12-19


       trust her, that he felt if he gave her – he thought she was being
       greedy that she wanted it all, she didn’t just want her share. So he
       gave her a little power hoping that she would back off because he
       was scared of her. Tr., p. 121-22.

       {¶12} After Sauber’s testimony concluded, Jackson returned to the stand.

She testified that Beverly’s financial records were not reconciled or properly

accounted for when she started to handle his finances. Jackson also denied having

a new boat. Instead, she explained that her husband owned an approximately 10-

year old boat that was parked on her property. Jackson then testified regarding

Beverly’s trust of her as follows:

       Q: And again from your conversations with your father my
       memory is fading a little bit, but just to clarify what was his
       discussions with you about whom he trusted and why?

       ***

       A: Like I had said before at one time I, you know, when the girls
       quit talking to me I was kind of hurt by that so I wanted to make sure
       this was what Dad wanted and I said Dad is there anybody else you
       would rather have do this? I mean I said do you want [Stauffer] or
       [Sauber] and you know, Audrey of course was living out of state so
       he wasn’t considering her, but I said, he told me he didn’t want
       [Stauffer] because he didn’t trust her and [Sauber] he didn’t think
       she knew what she was doing. That’s what he told me, he said no, I
       want you to stay doing it, it was like I wanted to give him that option
       because they were making me feel like I tricked him into this and I
       didn’t. Tr., p. 142-43.

Appellants’ counsel objected to this line of questioning, but the trial court

overruled it on the grounds that previous witnesses had testified to Beverly’s trust

of Jackson.

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Case Nos. 13-12-28, 13-12-19


       {¶13} On May 29, 2012, the trial court appointed Jackson the administrator

of the Estate.

       {¶14} Appellants filed this timely appeal from the trial court’s judgment,

presenting the following assignment of error for our review.

                               Assignment of Error

       THE TRIAL COURT ERRED AND ABUSED ITS
       DISCRETION IN ALLOWING PAULA JACKSON TO
       TESTIFY TO A HEARSAY STATEMENT THAT WAS NOT
       OFFERED TO REBUT TESTIMONY BY AN ADVERSE
       PARTY ON A MATTER WITHIN THE KNOWLEDGE OF A
       DECEASED PERSON.

       {¶15} In their sole assignment of error, Appellants contend that the trial

court committed reversible error in allowing Jackson to testify regarding Beverly’s

hearsay statements that he trusted her, and not Appellants, to handle his affairs.

We disagree.

                               Standard of Review

       {¶16} We only disturb a trial court’s decision to admit evidence that is

purportedly hearsay upon a showing of an abuse of discretion. In re Estate of

Clay, 3d Dist. No. 10-98-12 (Feb. 3, 1999). A trial court will be found to have

abused its discretion when its decision is contrary to law, unreasonable, not

supported by the evidence, or grossly unsound. See State v. Boles, 2d Dist. No.

23037, 2010-Ohio-278, ¶ 16-18, citing Black’s Law Dictionary 11 (8th Ed.2004).

When applying the abuse of discretion standard, a reviewing court may not simply

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Case Nos. 13-12-28, 13-12-19


substitute its judgment for that of the trial court. State v. Nagle, 11th Dist. No. 99-

L-089 (June 16, 2000), citing Blakemore v. Blakemore, 5 Ohio St.3d 217, 219

(1983).

                                    Hearsay Rule

       {¶17} Hearsay is “a statement, other than one made by the declarant while

testifying at trial or hearing, offered in evidence to prove the truth of the matter

asserted.” Evid.R. 801(C). Evid.R. 802 generally prohibits the admission of

hearsay unless the offered hearsay statement is covered by a specific exception.

The parties’ briefing directs us to two possible exceptions that may apply in this

matter.

                     Statement of a Deceased Person Exception

       {¶18} Appellants direct us to the statement of a deceased person exception

provided in Evid.R. 804(B)(5). They argue that this is the only possible exception

and that Jackson’s testimony does not satisfy it.        The exception provides, in

pertinent part, as follows:

       (B) * * * The following are not excluded by the hearsay rule if the
       declarant is unavailable as a witness:

       ***

       (5) * * * The statement was made by a decedent * * *, where all of
       the following apply:

       (a) the estate or personal representative of the decedent’s estate * *
       * is a party;

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Case Nos. 13-12-28, 13-12-19



        (b) the statement was made before the death * * *;

        (c) the statement is offered to rebut testimony by an adverse party
        on a matter within the knowledge of the decedent * * *.

Evid.R. 804(B)(5) “permits a hearsay exception for the declarations of the

decedent which rebut testimony offered by an adverse party and is only available

to the party for the decedent.” Boley v. Kennedy, 3d Dist. No. 3-02-35, 2003-

Ohio-1663, ¶ 25. As a result, only the administrators and executors of an estate

are able to utilize this hearsay exception. Testa v. Roberts, 44 Ohio App.3d 161,

167 (6th Dist.1988); see also (emphasis added.) Bilikam, Huntington Natl. Bank of

Columbus v. Bilikam, 2 Ohio App.3d 300 (10th Dist.1982), paragraph four of the

syllabus (“Evid.R. 804(B)(5) is an exception to the hearsay rule for the benefit of a

representative of a decedent * * *.”).

        {¶19} Here, Jackson offered her testimony during the course of a hearing

on the appointment of the Estate’s administrator. Consequently, at the time of the

hearing, Jackson was not the representative of the Estate and she could not offer

her testimony as to Beverly’s hearsay statements under the purview of Evid.R.

804(B)(5). As such, Jackson’s testimony was not admissible under the statement

of a deceased person exception.1



1
  We also note that neither Stauffer nor Sauber were the representative of the Estate at the time of the
hearing. As such, their testimonies regarding Beverly’s hearsay statements were also inadmissible under
Evid.R. 804(B)(5).

                                                  -9-
Case Nos. 13-12-28, 13-12-19


                 Statement of Then-Existing Mental, Emotional, or
                           Physical Condition Exception

       {¶20} Our finding that Jackson’s testimony was inadmissible under Evid.R.

804(B)(5) does not end our inquiry. Jackson directs us to the statement of a then-

existing mental, emotional, or physical condition exception found in Evid.R.

803(3). It provides, in pertinent part, as follows:

       The following are not excluded by the hearsay rule, even though the
       declarant is available as a witness:

       **

       (3) * * * A statement of the declarant’s then existing state of mind,
       emotion, sensation, or physical condition (such as intent, plan,
       motive, design, mental feeling, pain and bodily health) * * *.
       Evid.R. 803(3).

Statements admitted under this exception “cannot include an explanation as to why

the declarant was of that particular [condition].” (Emphasis sic.) State v. Stewart,

75 Ohio App.3d 141, 152 (11th Dist.1991), citing State v. Apanovitch, 33 Ohio

St.3d 19, 21 (1987).

       {¶21} Appellants’ complaint is directed towards the following testimony by

Jackson:

       A:     Like I said before at one time I, you know, when the girls quit
       talking to me I was kind of hurt by that so I wanted to make sure this
       was what Dad wanted and I said Dad is there anybody else you
       would rather have do this? I mean I said do you want [Stauffer] or
       [Sauber] and you know, Audrey was of course living out of state so
       he wasn’t considering her, but I said, he told me he didn’t want
       [Stauffer] because he didn’t trust her and [Sauber] he didn’t think

                                         -10-
Case Nos. 13-12-28, 13-12-19


        she knew what she was doing. That’s what he told me, he said no, I
        want you to stay doing it, it was like I wanted to give him that option
        because they were making me feel like I tricked him into this and I
        didn’t. Tr., p. 142-43.

Beverly’s hearsay statements contain two items of evidence regarding his then-

existing state of mind before his death: (1) he trusted Jackson to handle his affairs;

and (2) he trusted Jackson because he did not trust Stauffer and thought that

Sauber could not handle the task.

        {¶22} The first piece of evidence, which relates directly to Beverly’s state

of mind at the time of his statement, was admissible pursuant to Evid.R. 803(3).

See McGrew v. Popham, 5th Dist. No. 05 CA 129, 2007-Ohio-428, ¶ 30 (finding

that decedent’s hearsay statement regarding her intent to transfer property was

admissible under Evid.R. 803(3)).                 However, the second piece of evidence

regarding the basis for Beverly’s state of mind is not covered by Evid.R. 803(3)

and thus should not have been admitted. See id. at ¶ 31 (finding that decedent’s

hearsay statement regarding the reason that she intended to transfer property was

inadmissible under Evid.R. 803(3)).2 Consequently, we find that the trial court

erred in admitting testimony that included Beverly’s hearsay statements regarding

the basis for his trust of Jackson. However, it did not err in admitting Jackson’s

testimony that Beverly told her that he trusted her.


2
  The same analysis would apply to Appellants’ testimonies regarding Beverly’s hearsay statements as well.
As such, Appellants’ testimonies that Beverly said he did not trust Jackson would be admissible, but their
testimonies that Beverly based his lack of trust on certain actions would be inadmissible.

                                                  -11-
Case Nos. 13-12-28, 13-12-19


                      Prejudicial Effect of Jackson’s Testimony

       {¶23} Even through the trial court erred in allowing Jackson to testify as to

Beverly’s hearsay statements regarding the basis for trusting her, we find that the

error was invited and harmless. “The doctrine of invited error holds that a litigant

may not ‘take advantage of an error he himself invited or induced.’” State v.

Campbell, 90 Ohio St.3d 320, 324 (2000), quoting Hal Artz Lincoln-Mercury, Inc.

v. Ford Motor Co., 28 Ohio St.3d 20 (1986), paragraph one of the syllabus.

Appellants first elicited their testimonies regarding Beverly’s hearsay statements

that he did not trust Jackson because she was purportedly mishandling his affairs.

This induced the trial court to allow Jackson to testify regarding similar hearsay

evidence. Due to this invited error, we cannot find that the erroneous admission of

Jackson’s testimony is reversible. See State v. Ray, 3d Dist. No. 14-05-39, 2006-

Ohio-5640, ¶ 43-44 (finding that invited error doctrine applied where the appellant

was the first to elicit testimony regarding impermissible hearsay statements).

       {¶24} Further, there is no indication that the testimony regarding Beverly’s

trust of Jackson swayed the trial court. The trial court’s ruling does not indicate

that it is based on Beverly’s trust, or lack thereof, of Jackson before his death.

Rather, the trial court’s order refers to a myriad of other facts as the bases for its

ruling, which are sufficient, without reference to trust, for the trial court’s order.




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Case Nos. 13-12-28, 13-12-19


       {¶25} The trial court listed the reasons for its decision, including the

following:

       (1) Beverly’s execution of the Banking POA and Health Care POA in

       Jackson’s favor;

       (2) Jackson’s management of Beverly’s financial affairs before his death,

       which left her familiar with the Estate’s assets and debts;

       (3) Audrey’s support for Jackson’s application;

       (4) Jackson’s competency to handle the Estate; and

       (5) The lack of evidence suggesting that Jackson had mishandled

       Beverly’s financial affairs.

The trial court did not indicate that it based its ruling on evidence that Beverly

trusted Jackson to handle his affairs.

       {¶26} Indeed, the trial court explicitly downplayed evidence of Beverly’s

trust during the course of the hearing by stating, “I don’t want to get into a lot of

time with what Dad [Beverly] said and didn’t say. He’s not here and it’s really not

that weighty for me in terms of hearing folks give self-serving testimony how

much Daddy loved us.” Tr., p. 71. As a result, the erroneous admission of the

testimony was harmless.

       {¶27} Accordingly, we overrule Appellants’ sole assignment of error.




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Case Nos. 13-12-28, 13-12-19


       {¶28} Having found no error prejudicial to Appellants, in the particulars

assigned and argued, we affirm the judgments of the trial court.

                                                              Judgments Affirmed

PRESTON, P.J. and SHAW, J., concur.

/jlr




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