[Cite as In re Estate of Luoma, 2013-Ohio-148.]


                                   IN THE COURT OF APPEALS

                               ELEVENTH APPELLATE DISTRICT

                                        LAKE COUNTY, OHIO


ESTATE OF                                         :     OPINION
ROBERT M. LUOMA, DECEASED
                                                  :
                                                        CASE NO. 2012-L-046




Civil Appeal from the Lake County Court of Common Pleas, Probate Division, Case
No. 09 ES 0063.

Judgment: Affirmed.


J. Alex Morton, 5247 Wilson Mills Road, Suite 334, Richmond Heights, OH 44143 (For
Appellant, Jonathan C. Luoma).

Jay F. Crook, Shryock, Crook & Associates, LLP, 30601 Euclid Avenue, Wickliffe, OH
44092 (For Appellee, Robert D. Luoma).

Gina M. Bevack-Ciani, Thrasher, Dinsmore & Dolan, 100 Seventh Avenue, Suite 150,
Chardon, OH 44024-1079 (For Appellee, Matthew N. Luoma).

Anthony J. Aveni, Cannon, Aveni & Malchesky Co., L.P.A., 41 East Erie Street,
Painesville, OH 44077 (Administrator of the Estate of Robert M. Luoma).



MARY JANE TRAPP, J.

        {¶1}    Jonathan C. Luoma appeals from a judgment of the Probate Division of

the Lake County Court of Common Pleas, which denied his Motion for Forfeiture

pursuant to R.C. 2701.10(A). He sought to have the probate court find that his brother,
Matthew Luoma, had forfeited his share of their father’s estate because Matthew had

failed to probate the will within three years of the elder Luoma’s death. Both Matthew

and Jonathan presented evidence to a magistrate, and a review of the evidence reveals

that Jonathan was unable to establish all the elements required by the forfeiture statute.

Specifically, Jonathan failed to establish that Matthew (a) had the power to control the

will during the three-year period contemplated by the statute, and (b) did not have

reasonable cause for his failure to probate the will. Because we find the probate court’s

decision is supported by both the evidence and the law of forfeiture, we affirm the

decision of the Lake County Court of Common Pleas, Probate Division.

       Substantive Facts and Procedural History

       {¶2}   Robert M. Luoma (“Mr. Luoma”), a resident of Rockport, Massachusetts,

died on December 7, 2005. He was survived by three sons: Jonathan C. Luoma, of

Maine, Matthew N. Luoma, of California, and Robert D. Luoma, of Ohio. Mr. Luoma’s

most valuable asset was a house in Fairport Harbor, Lake County.            In his will, he

bequeathed 50 percent of the interest in the house to Robert and 25 percent each to

Jonathan and Matthew. The three brothers were to share the residue of his estate

equally.

       {¶3}   After Mr. Luoma died, the brothers met at his apartment in Massachusetts

to divide minor household items he owned. As for his 1998 Toyota Corolla, the brothers

agreed Robert should drive it to Ohio, sell it, and divide the proceeds among the

brothers. Robert sold the car in Ohio for $4,000, but used the funds to repair the

Fairport Harbor house that had been cited by the city for its deteriorating condition.




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       {¶4}   Matthew was named the executor in Mr. Luoma’s will and Jonathan the

alternate executor. Matthew, however, did not offer his father’s will for probate in

Massachusetts, apparently believing it was unnecessary because his father only owned

nominal property in Massachusetts. The Fairport Harbor house, valued at $67,000, was

rented for a short period of time to tenants after his father moved to Massachusetts.

       {¶5}   On February 6, 2009, Jonathan filed an ancillary administration in Ohio

and asked the court to appoint him as the executor. The court denied the request and

Jonathan appealed to this court, in Lake County Appeal Case Number 2009-L-123.

This court subsequently dismissed the appeal upon the parties’ request, after the

parties agreed to have the trial court appoint a third party, Anthony J. Aveni, Esq., as

the Administrator, WWA, of the estate.

       {¶6}   On February 11, 2010, Mr. Aveni filed the Inventory and Appraisal (the

“Inventory”) of the estate. The only property listed on the inventory was the Fairport

Harbor real property. Jonathan filed “Exceptions to Inventory and Appraisal,” alleging

the inventory failed to include rental income from the Fairport Harbor house, its

furnishings, and the Toyota Corolla.

       {¶7}   A hearing on the exceptions was held before a magistrate, who issued a

decision recommending that the trial court deny the exceptions.             Jonathan filed

objections to the magistrate’s decision. The probate court held a hearing on Jonathan’s

objections and overruled them; Jonathan appealed the matter in Estate of Luoma, 11th

Dist. No. 2011-L-006, 2011-Ohio-4701. We affirmed the decision of the probate court.

       {¶8}   In addition to the Exceptions to Inventory and Appraisal, Jonathan also

filed a Motion for Forfeiture, claiming Matthew’s interest in the estate should be forfeited




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because Matthew failed to offer Mr. Luoma’s will for probate and neglected his duty as

the executor.     The magistrate conducted a hearing, and issued her decision

recommending the probate court overrule the motion for forfeiture.          The magistrate

specifically found Matthew’s testimony credible, stating that “Matthew believed he

administered his father’s estate, as executor, by distributing the assets in the bank

equally between the brothers and dividing the personal, tangible property. Matthew

derived no benefit from not offering the Will for probate. Further, Matthew’s brothers

were not harmed by failing to probate the Will. Whether the real property may have

been sold for more money immediately after decedent’s death is speculative.”

       {¶9}   On the other hand, the magistrate found Jonathan’s testimony not

credible. She stated that “Jonathan, according to his testimony, advised Matthew to

probate the Will; however, Jonathan’s knowledge of probate stops [sic] did not extend to

his ability to serve as executor, although named as the alternate executor in decedent’s

Will. Jonathan’s testimony regarding whether he was aware he could offer the Will for

probate is not consistent. Further, Jonathan did not offer the Will to probate for over

three years. Jonathan had the same copy of the Will that Matthew had. Further, he had

the same ability to control a copy of the Will. Jonathan is the only brother who knew, in

late 2009, that the original Will is located in the Massachusetts attorney’s office.”

       {¶10} Jonathan filed objections to the magistrate’s decision, which the probate

court stayed pending the outcome of the Inventory appeal. After this court affirmed the

probate court’s decision regarding the Inventory, the judge then conducted an

independent review of the record in order to rule on Jonathan’s latest objections.




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         {¶11} In its judgment entry on the magistrate’s decision to overrule the motion

for forfeiture, the probate court found the decision well taken in part. Without any further

explanation, the probate court modified the magistrate’s decision to reflect that Matthew

“never had the power to control the Will.” Otherwise, the probate court adopted the

magistrate’s decision in its entirety.

         {¶12} Jonathan timely appealed and now brings the following assignments of

error:

         {¶13} “[1.] The Probate Court erred by interpreting R.C. 2107.10(A) to require

that a beneficiary’s withholding or neglect or concealment or refusal to cause it (the will)

to be offered for probate must be intentional and without reasonable cause, for the

purpose of delaying its administration or defeating some rights or benefits given by the

terms of the will.”

         {¶14} “[2.] The Probate Court erred by incorrectly applying R.C. 2107.10(A) to

the facts of this case and concluding that Matthew never had the power to control the

Decedent’s Will.”

         Whether Forfeiture Statute Requires an Intentional Act Without Reasonable
         Cause

         {¶15} In his first assignment of error, Jonathan argues that the probate court

misconstrued the law of forfeiture, and engrafted a “specific” intent requirement onto the

forfeiture statute. He suggests that the magistrate incorrectly relied on In re Kusar, 5

Ohio Misc. 23 (1965), as it is not binding authority upon the probate court. We find no

error in the probate court’s interpretation of the forfeiture statute and overrule

Jonathan’s first assignment of error.

         Standard of Review



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       {¶16} “On appeal, a trial court’s adoption of a magistrate’s decision will not be

overruled unless the trial court abused its discretion in adopting the decision.” Brown v.

Gabram, 11th Dist. No. 2004-G-2605, 2005-Ohio-6416, ¶11, citing Lovas v. Mullett,

11th Dist. No. 2000-G-2289, 2001 Ohio App. LEXIS 2951, *5-6 (July 29, 2001). As this

court recently stated, the term “abuse of discretion” is one of art, “connoting judgment

exercised by a court, which does not comport with reason or the record.” State v.

Underwood, 11th Dist. No. 2008-L-113, 2009-Ohio-2089, ¶30, citing State v. Ferranto,

112 Ohio St. 667, 676-678 (1925). The Second Appellate District also recently adopted

a similar definition of the abuse-of-discretion standard: an abuse of discretion is the trial

court’s “failure to exercise sound, reasonable, and legal decision-making.”         State v.

Beechler, 2d Dist. No. 09-CA-54, 2010-Ohio-1900, ¶62, quoting Black’s Law Dictionary

(8 Ed.Rev.2004) 11. When an appellate court reviews a pure issue of law, “the mere

fact that the reviewing court would decide the issue differently is enough to find error (of

course, not all errors are reversible. Some are harmless; others are not preserved for

appellate review). By contrast, where the issue on review has been confined to the

discretion of the trial court, the mere fact that the reviewing court would have reached a

different result is not enough, without more, to find error.” Id. at ¶67.

       Requirements of R.C. 2107.10(A)-Knowledge, Power to Control and Intent
       Without Reasonable Cause

       {¶17} This case centers around the interpretation and applicability of R.C.

2107.10(A), which provided that: “No property or right, testate or intestate, shall pass to

a beneficiary named in a will who knows of the existence of the will for three years and

has the power to control it, and, without reasonable cause, intentionally conceals or

withholds it or neglects or refused within the three years to cause it to be offered for or



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admitted to probate. The estate devised to such devisee shall descend to the heirs of

the testator, not including any heir who has concealed or withheld the will.”1

       {¶18} Scant case law exists as related to this statute, but the most recent

interpretation states that “Revised Code § 2107.10(A) provides a penalty for

intentionally withholding a will, without just cause * * *.” Boczkiewicz v. Gallagher, 8th

Dist. No. 87251, 2006-Ohio-4289, ¶21. We are unable to locate any binding authority

interpreting R.C. 2107.10(A), and Jonathan has provided us with no such authority.

Kusar, however, while not binding authority, provides insightful guidance: “Being a

penalty statute and thus requiring a strict construction, it then becomes necessary to

show that any of the children sought to be brought under the forfeiture provisions, in

addition to having known about the will for more than three years after the death of the

testatrix, must have had the power to control the will and must not have had reasonable

cause to withhold it or to neglect to probate it.” Kusar at 30.

       {¶19} The probate judge in Kusar           begins his analysis with the decision in

Hoskins, Admrx., v. Lentz, 23 Ohio Law Abs. 5 (1936), which “best expressed” the

pertinent rule of law announced in two earlier decisions, namely, that a beneficiary who

fails to offer a will for probate within the statutory three-year period is “not deprived of

his legacy or devise unless his withholding or neglect or concealment or refusal to

cause it to be offered for probate is intentional and without reasonable cause, for the

purpose of delaying its administration or deferring some rights or benefits given by the

terms of the will.” Kusar at 29. We, too, find from a plain reading of the statute that the

word “intentionally” modifies the verbs “conceals,” “withholds,” “neglects,” and “refuses.”


1. R.C. 2107.10(A) has since been amended to a one year requirement instead of the three years
permitted at the time this case originated.


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Jonathan’s assertion that the statute is worded in the “disjunctive,” that is, the adverb

“intentionally” only modifies the verbs “conceals” and “withholds,” but does not modify

the verb “neglects,” thus setting both a negligence and a specific intent standard, is

tortured and incorrect.

       {¶20} Further, while Jonathan argues that the statute must be read in the

disjunctive, to allow for forfeiture as a result of either intentional concealment or neglect,

he fails to recognize that either standard still requires a lack of reasonable cause to

trigger forfeiture. The individual facing forfeiture must also have the power to control the

will in order for such a penalty to be imposed. A review of the record reveals that

Matthew demonstrated that he had reasonable cause not to probate the will, and that he

did not have the power to control the will. We address the question of Matthew’s power

to control the will in the second assignment error.

       {¶21} The magistrate specifically found Matthew’s testimony as to why he did

not offer the will for probate credible. He believed he had fulfilled his duty as executor

by distributing Mr. Luoma’s bank assets and personal property. He did not think he

needed to probate the will, either in Massachusetts or Ohio, because it only disposed of

the Fairport Harbor house, and there was already an agreement between the three

brothers as to the house. We must defer to the finder of fact, the magistrate in this

case, as to whether Matthew proffered a credible explanation for his failure to offer the

will for probate. The magistrate found that Matthew had reasonable cause for failing to

probate the will, and thus he does not meet the statutory requirements of R.C.

2107.10(A) for the imposition of forfeiture.




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       {¶22} A review of this record reveals that the magistrate’s findings were

supported by competent and credible evidence, and the probate court did not abuse its

discretion in adopting such findings after an independent review of the record. We find

no error by the magistrate or the probate court in looking to Kusar for persuasive

guidance when little case law exists on the subject matter, and no binding authority can

be located. Assignment of error one is without merit.

       Whether Matthew Controlled the Will

       {¶23} In his second assignment of error, Jonathan argues that the trial court

erred when it modified the magistrate’s decision to include a finding that Matthew never

controlled the will.   Jonathan provides no case law or other authority in support of his

argument regarding the power to control the will. We note that “a party asserting error

in the trial court bears the burden to demonstrate error by reference to matters made

part of the record in the court of appeals.”      Concord Twp. Trustees v. Hazelwood

Builders, 11th Dist. No. 2000-L-040, 2001 Ohio App. LEXIS 1383, *6 (Mar. 23, 2001),

citing Knapp v. Edwards Laboratories, 61 Ohio St.2d 197 (1960). “‘An appellate court is

empowered to disregard an assignment of error presented for review due to a lack of

briefing by the party presenting that assignment. Proper appellate briefing standards

are set forth in App.R. 16(A).’” Pearlstein v. Pearlstein, 11th Dist. No. 2008-G-2837,

2009-Ohio-2191, ¶81, quoting Keating v. Keating, 8th Dist. No. 90611, 2008-Ohio-5345,

¶111, quoting Cireddu v. Cireddu, 8th Dist. No. 76784, 2000 Ohio App. LEXIS 4076

(Sept. 7, 2000). If assignments are not properly briefed, “they should be disregarded

‘due to the complete lack of argument containing reasons in support of the contention

and citations to authority.’” Id., quoting Keating at ¶111, quoting Cireddu at *24. We




                                             9
choose, however, to dispose of this assignment of error on the merits. Although the

probate court offered no further explanation for its modification, we find no error

because the evidence supports the probate court’s conclusion.

       {¶24} Initially, we note that this assignment is rendered moot by our holding

above that Matthew provided reasonable cause for his failure to probate the will. Given

that a probate court must find that the individual facing forfeiture had the power to

control the will during the three-year period following a decedent’s death and that the

individual lacked reasonable cause for his failure to probate the will, Matthew has

already defeated Jonathan’s motion for forfeiture by proffering a credible and

reasonable explanation for his failure. We will, however, review the assignment of error

on the merits so as to fully address Jonathan’s concerns.

       {¶25} Jonathan argues that the probate court erred in modifying the magistrate’s

decision to reflect that Matthew never had the power to the control the will. However,

the record reveals that Matthew did not, in fact, have possession of the will.       The

evidence established that the will was in Attorney Visnick’s Massachusetts office ever

since Mr. Luoma’s death. Matthew testified that he made copies of the will just after his

father’s death and distributed copies to Jonathan and Robert; therefore, all three

brothers were aware of the will’s existence and contents, and, specifically, Jonathan

was aware that he had been named as alternate executor of the estate. Furthermore,

Jonathan discovered in 2009 that the original will was in Attorney Visnick’s office, and

acknowledged during the hearing that he had the power to probate the will if Matthew

failed to do so.   Thus, it is clear that both Matthew and Jonathan each had the power

to take action and present a copy of the will for probate. No evidence is present in the




                                           10
record to demonstrate that Matthew ever had possession of the will, nor that he ever

had power to control the attorney’s possession of the will.

      {¶26} Further, Jonathan, in fact, had the power to compel the production of the

original will for probate because he knew its location, but never did so. Therefore, it

cannot be said that Matthew had exclusive control of the will; they both had the same

power to control the Will. The record is replete with evidentiary support for this finding.

We, therefore, find no error in the probate court’s modification upon independent review

of the record; the second assignment of error is without merit.



TIMOTHY P. CANNON, P.J.,

CYNTHIA WESTCOTT RICE, J.,

concur.




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