[Cite as Work v. Work, 2018-Ohio-3104.]


STATE OF OHIO                   )                    IN THE COURT OF APPEALS
                                )ss:                 NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN                )

LARRY A. WORK                                        C.A. No.      17CA011228

        Appellant

        v.                                           APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
TINA L. WORK, et al.                                 COURT OF COMMON PLEAS
                                                     COUNTY OF LORAIN, OHIO
        Appellees                                    CASE No.   16CV190298

                                DECISION AND JOURNAL ENTRY

Dated: August 6, 2018



        TEODOSIO, Presiding Judge.

        {¶1}    Larry A. Work, Jr. appeals the orders of the Lorain County Court of Common

Pleas granting summary judgment in favor of Tina L. Work and Jeanne Marie Sullivan-

DiFrancesco. We affirm.

                                                I.

        {¶2}    In August 2016, Mr. Work filed his complaint for intentional interference with an

expectancy of inheritance against Tina L. Work, Jeanne Sullivan-DiFrancesco, and Jennifer

Work-Smith, and filed an amended complaint in January 2017. Ms. Work-Smith was dismissed

in September 2017. The decedent, who passed away in 2013, was the father of Mr. Work and

brother to Ms. Sullivan-DiFrancesco. Tina Work is the ex-wife of the decedent, with the couple

divorcing in 2012. The decedent’s will named Ms. Sullivan-DiFrancesco as the administrator,

however no probate proceedings have been initiated.
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       {¶3}    Ms. Work and Ms. Sullivan-DiFrancesco filed motions for summary judgment in

August 2017.     In response, Mr. Work filed briefs in opposition along with motions for

continuances in order to obtain discovery. The trial court denied the motions for continuances,

noting that the discovery deadline had been agreed to by the parties, had been extended by two

months, and that no motion to compel had been filed by Mr. Work. The trial court granted the

motions for summary judgment in favor of Ms. Work and Ms. Sullivan-DiFrancesco. Mr. Work

now appeals, raising one assignment of error.

                                                II.

                                  ASSIGNMENT OF ERROR

       THE TRIAL COURT ERRED IN GRANTING DEFENANTS’-APPELLEES’
       MOTIONS FOR SUMMARY JUDGMENT ON A CLAIM FOR
       INTENTIONAL INTERFERENCE WITH AN EXPECTANCY OF AN
       INHERITANCE.

       {¶4}    In his assignment of error, Mr. Work argues the trial court erred in granting

summary judgment in favor of defendants on his claim for intentional interference with an

expectancy of an inheritance. Specifically, Mr. Work contends that Ms. Work and Ms. Sullivan-

DiFrancesco failed to provide sufficient and proper evidence showing that there was no genuine

issue as to any material fact. We disagree.

       {¶5}    Appellate review of an award of summary judgment is de novo. Grafton v. Ohio

Edison Co., 77 Ohio St.3d 102, 105 (1996). Summary judgment is appropriate under Civ.R. 56

when: (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) viewing the evidence most strongly in favor of

the nonmoving party, reasonable minds can come to but one conclusion and that conclusion is

adverse to the nonmoving party. Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327 (1977),

citing Civ.R. 56(C). A court must view the facts in the light most favorable to the non-moving
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party and must resolve any doubt in favor of the non-moving party. Murphy v. Reynoldsburg, 65

Ohio St.3d 356, 358–359 (1992). A trial court does not have the liberty to choose among

reasonable inferences in the context of summary judgment, and all competing inferences and

questions of credibility must be resolved in the nonmoving party’s favor. Perez v. Scripps–

Howard Broadcasting Co., 35 Ohio St.3d 215, 218 (1988).

       {¶6}    The Supreme Court of Ohio has set forth the nature of this burden-shifting

paradigm:

       [A] party seeking summary judgment, on the ground that the nonmoving party
       cannot prove its case, bears the initial burden of informing the trial court of the
       basis for the motion, and identifying those portions of the record that demonstrate
       the absence of a genuine issue of material fact on the essential element(s) of the
       nonmoving party’s claims. The moving party cannot discharge its initial burden
       under Civ.R. 56 simply by making a conclusory assertion that the nonmoving
       party has no evidence to prove its case. Rather, the moving party must be able to
       specifically point to some evidence of the type listed in Civ.R. 56(C) which
       affirmatively demonstrates that the nonmoving party has no evidence to support
       the nonmoving party’s claims. If the moving party fails to satisfy its initial
       burden, the motion for summary judgment must be denied. However, if the
       moving party has satisfied its initial burden, the nonmoving party then has a
       reciprocal burden outlined in Civ.R. 56(E) to set forth specific facts showing that
       there is a genuine issue for trial and, if the nonmovant does not so respond,
       summary judgment, if appropriate, shall be entered against the nonmoving party.

Dresher v. Burt, 75 Ohio St.3d 280, 293 (1996).

       {¶7}    Mr. Work’s amended complaint alleged that Ms. Work committed an intentional

tort by failing to turn over all assets belonging to the decedent to either the decedent himself

while he was still living or to Ms. Sullivan-DiFrancesco after his death. The amended complaint

further alleged Ms. Sullivan-DiFrancesco committed an intentional tort in failing to probate the

decedent’s estate and distribute to the appellant his share of the estate.

       {¶8}    With regard to Ms. Work, her affidavit attached to her motion for summary

judgment averred the following: (a) that she did not have any control over the decedent’s assets
                                                  4


for the last year prior to his death; (b) that prior to their divorce she and the decedent maintained

separate bank accounts; (c) that the decedent’s 1948 GMC truck is at the Sheffield Village

residence and remains titled in the decedent’s name; (d) that she was the beneficiary of the

decedent’s 403(b) retirement account, that she received a letter from Mutual of America advising

her as to that fact, and that she completed the application for death benefits and received the

proceeds sometime later; and (e) that she has not interfered with any of the decedent’s assets or

Mr. Work’s expectancy of inheritance.

       {¶9}    With regard to the Sheffield Village residence, she averred that she owned the

home with the decedent as joint tenants with rights of survivorship, and that pursuant to the

divorce decree, they were to sell the home and split any proceeds. She averred that they listed

the property, but failed to sell it, and that after the decedent had passed away, it was not listed for

sale again. She further averred that she had made all mortgage, insurance, and tax payments

since the decedent’s death. She also stated the property can only be transferred out of the

decedent’s name through a probate estate proceeding.

       {¶10} In the affidavit attached to his brief in opposition, Mr. Work averred that Ms.

Work interfered with his expected inheritance by:

       Not selling and continuing to reside in the home located [in Sheffield Village] * *
       *; (b) not dividing the joint checking and savings accounts they had with First
       Place Bank; (c) cashing in and keeping one hundred percent of [] Larry Allen
       Work’s 403b Thrift account with Mutual of America; [and] (d) keeping Larry
       Allen Work’s 1948 GMC Truck at her residence.

       {¶11} Mr. Work has provided no evidence of the existence of any joint accounts

containing funds to which he may be entitled, and has provided no rationale as to why he would

have an expectancy of any funds contained in the decedent’s 403(b) account with Mutual of

America. As to the Sheffield Village residence and the GMC truck, Mr. Work suggests no
                                                 5


argument that would prevent these assets from being properly divided if probate proceedings

were initiated.

       {¶12} With regard to Ms. Sullivan-DiFrancesco, as we have noted, the complaint

alleged that she committed an intentional tort by failing to probate the estate or distribute to Mr.

Work his share of the estate. In the affidavit attached to her motion for summary judgment, Ms.

Sullivan-DiFrancesco averred the following: (1) she was named in her brother’s will to be

appointed as executrix; (2) she did not approach the probate court to be appointed executrix; (3)

she repeatedly offered to step aside to allow Mr. Work to become the executor; (4) she has done

nothing to interfere or deprive Mr. Work of any inheritance; (5) she has taken no action on behalf

of the estate except to file a 2014 tax return and submit forms to Mutual of America with regard

to a life insurance policy; (6) she deposited a $1,200.00 tax return check into the decedent’s bank

account; and (7) she disclaims and waives her nomination to serve as executrix.

       {¶13} In the affidavit attached to his brief in opposition, Mr. Work averred that Ms.

Sullivan-DiFrancesco interfered with his expected inheritance by taking actions involving the

decedent’s assets after his death without being named as executrix or administrator by the

probate court.

       {¶14} In his amended complaint, Mr. Work alleged that Ms. Sullivan-DiFrancesco

committed an intentional tort by failing to probate the estate or distribute to Mr. Work his share

of the estate. There is no requirement that an executrix named in a will accept the appointment.

See R.C. 2113.05 (“When a will is approved and allowed, the probate court shall issue letters

testamentary to the executor named in the will * * * if the executor * * * is suitable, competent,

accepts the appointment, and gives bond * * *.”). Consequently, there was no requirement that

Ms. Sullivan-DiFrancesco accept the appointment, probate the estate, and distribute a share to
                                                  6


Mr. Work. Furthermore, Mr. Work’s affidavit fails to refute the affidavit evidence of Ms.

Sullivan-DiFrancesco, and fails to offer any evidence that she interfered with his inheritance.

       {¶15} We conclude the trial court did not err in granting summary judgment. Ms. Work

and Ms. Sullivan-DiFrancesco met their burden of demonstrating an absence of genuine issues of

material fact, and Mr. Work failed to meet his reciprocal burden of providing evidence to set

forth specific facts showing that there was a genuine issue for trial.

       {¶16} Mr. Work’s assignment of error is overruled.

                                                 III.

       {¶17} Mr. Work’s assignment of error is overruled and the judgment of the Lorain

County Court of Common Pleas is affirmed.

                                                                               Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of

this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.
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      Costs taxed to Appellant.




                                              THOMAS A. TEODOSIO
                                              FOR THE COURT



CARR, J.
HENSAL, J.
CONCUR.


APPEARANCES:

RANDOLPH R. ROTH, Attorney at Law, for Appellant.

BRIAN G. DATTILO, Attorney at Law, for Appellee.

HENRY W. CHAMBERLAIN, Attorney at Law, for Appellee.
