[Cite as In re Estate of Green, 2018-Ohio-710.]



                                     IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                            WARREN COUNTY




IN THE MATTER OF: THE ESTATE OF:                  :
LENNA M. GREEN, DECEASED                                CASE NOS. CA2017-04-046
                                                  :               CA2017-04-047

                                                  :            OPINION
                                                                02/26/2018
                                                  :

                                                  :



             APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS
                             PROBATE DIVISION
                             Case No. 20101114



Danny M. Green (A687591), Chillicothe Correctional Institution, P.O. Box 5500, 15802
State Route 104 North, Chillicothe, Ohio 45601, appellant/cross-appellee, pro se

David D. Brannon, 130 West Second Street, Suite 900, Dayton, Ohio 45402, for
appellee/cross-appellant, Jennifer M. Ritchie, Administrator



        S. POWELL, J.

        {¶ 1} Appellant/cross-appellee, Danny M. Green, appeals from the decision of the

Warren County Court of Common Pleas, Probate Division, in a case involving the

distribution of assets from the estate of Lenna M. Green. Appellee/cross-appellant, Jennifer

M. Ritchie, as the administrator with Will Annexed of the estate, also appeals from that

decision.     For the reasons outlined below, we affirm the probate court's decision as

modified.
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                                            The Parties

       {¶ 2} Lenna M. Green ("Lenna") and Graydon L. Green ("Grady") were married in

Springfield, Ohio on June 5, 1965. During their marriage, Lenna and Grady had four

children; namely, Danny M. Green ("Danny"), Bryan L. Green ("Bryan"), Jennifer M. Ritchie

("Jennifer"), and Gwendolyn S. Kellum ("Gwendolyn"). After being married for over forty

years, Lenna and Grady were divorced on March 19, 2009. As part of their divorce decree,

Lenna was named the "sole owner" of the family's business interests in Pools & More

("Pools & More"), a business that engaged in the sale, distribution, and servicing of pools

and pool supplies.

       {¶ 3} On October 20, 2009, Lenna died leaving a last will and testament

bequeathing her estate assets equally to her four children, Danny, Bryan, Jennifer, and

Gwendolyn. Since Lenna's passing, it is undisputed that Bryan, who at one time served as

an attorney for the estate, gave up the practice of law after placing his law license on inactive

status. The record indicates Bryan now works at a Kohl's warehouse and picks up side

jobs working on pools. It is also undisputed that Gwendolyn has spent a significant amount

of time behind bars due to her ongoing battle with drug addiction, whereas Danny, who

appears in this case pro se, is currently serving nine years in prison after being convicted

of rape.1 Although this court is unable to comment on the current status of their relationship,

suffice it to say that Grady, Danny, Bryan, Jennifer, and Gwendolyn were not on good terms

after Lenna’s passing.

                                 Facts and Procedural History

       {¶ 4} As the probate court stated, "[t]o say this [case] is a complete and utter mess




1. Danny was sentenced to prison on August 5, 2013 and is currently scheduled to be released on January
20, 2022.
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is a major understatement." We agree. We also agree with the probate court's assertion

that "[i]f anyone was looking for a case which would underscore the importance of following

court procedure, they wouldn't have to look any further than this case."2 Nevertheless,

although faced with what the probate court considered the most poorly managed and

mishandled estate it had ever seen, after undertaking a thorough review of the record

properly before this court, including several hundred pages of bank records, we find the

following facts established.

        {¶ 5} On May 3, 2010, several months after Lenna's passing, Danny filed an

application with the probate court requesting he be named the administrator with Will

Annexed of his mother's estate. In support of this application, Danny submitted his mother's

last will and testament, which, as noted above, bequeathed her estate's assets equally to

her four children, Danny, Bryan, Jennifer, and Gwendolyn. Approximately two weeks later,

on May 25, 2010, the probate court appointed Danny as the administrator of the estate and

his brother, Bryan, was retained as counsel for the estate. At the time Bryan was retained

as counsel for the estate, although not generally working on probate and estate matters, it

is undisputed that Bryan was a properly licensed attorney within the State of Ohio.

        {¶ 6} On March 30, 2011, after an appraiser had been appointed for the estate,

Danny submitted an inventory and appraisal of the estate's assets to the probate court

indicating the estate had six assets worth a grand total of $548,500. Specifically, the

schedule of assets Danny submitted to the probate court listed the following:




2. The probate court also referred to this case as "a load of crap that's being dumped in my lap, and I'm being
told to unravel it," later characterizing this case as "a cluster. I've never seen an estate so poorly managed
and handled in my life. Ever." Concluding, the probate court then stated that "when this thing gets re-typed
for the 12th District, I want them to understand what kind of a mess I've inherited." After reviewing this case
ourselves, this court certainly understands the probate court's frustrations.
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                                    SCHEDULE OF ASSETS

             Item                          Appraised                        Value
     9093 Heritage Rd.                                                    $119,900
 1/2 interest of 40 acres on                                               75,000
         Friend Rd.
Debt owed From Grady Green                                                 156,000
    upon Sale of Property
Pools & More Business (84%                                                187,600
           Interest)
   2000 Lincoln Navigator                                                    4,000
   Household furnishings                                                     6,000

       {¶ 7} As a point of contention, Pools & More was appraised by Gail Berry, a certified

appraiser employed by Sibcy Cline Realtors. According to Berry, at the time of Lenna's

death, Pools & More had a total value of $223,300, "[a]ll value being placed on inventory

and no dollar value on the business entity." In explaining this appraisal further, Berry stated,

in pertinent part, the following:

              Justification for valuing the business entity at $0 is as follows:

              1) This business, as any business, is highly dependent upon
              the knowledge and expertise of the owners/managers, and
              therefore; marketable only to persons of trade specific
              knowledge.

              2) Pools & More is acquired through divorce action. Court
              proceedings for previous 2 years regarding said divorce, gave
              the owner at that time, ample time to engage in behavior that
              has diminished the reputation and name value of Pools & More.

              3) Following the death of Lenna M. Green; landlord of current
              location of Pools & More (ex-spouse to Lenna M. Green) has
              engaged in every attempt to evict this company from current
              location and/or raise the rent to a level unsustainable by the
              company. Should the landlord succeed in evicting the subject
              company from present location of business, Pools & More would
              not have a place to further conduct business.

              4) It has been discovered, for the past nine (9) years previous
              to Lenna M. Green acquiring the company, Mr. Green (previous
              owner), failed to file corporate income tax returns. This neglect
              successfully makes this company more of a liability than an
              asset.
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        {¶ 8} Concluding, Berry stated that it was her understanding that Bryan owned a

"16% interest in Pools & More, making the value of Pools & More to the estate $187,600."3

Not until many years later does it appear anybody ever objected to Berry's appraisal of

Pools & More at $233,300, all of which was based on the business's inventory and not the

business itself, nor to Berry's appraisal of the Friend Road property at $75,000.

        {¶ 9} In the years following, Danny and Bryan distributed the six listed estate assets

to themselves and to their two sisters, Jennifer and Gwendolyn. Although there were some

exceptions, these distributions were usually done without the probate court's knowledge or

approval. For instance, pursuant to what they believed to be a global agreement, Danny

and Bryan took over the business operations of Pools & More in exchange for Jennifer

receiving their mother's Heritage Road house. Unfortunately, although making every effort

to keep the business afloat, Pools & More floundered, thus leading Grady, the owner of the

property where the business was located, to file a forcible entry and detainer suit against

the business. Although the suit was later settled, Pools & More was nevertheless dissolved

and reestablished a short time later as BDG Enterprises, LLC dba Leisure Town.4

        {¶ 10} On January 3, 2013, Danny submitted an accounting to the probate court

indicating he had distributed the Heritage Road property to Jennifer and, after he, Jennifer,

and Gwendolyn executed a series of quitclaim deeds, the Friend Road property to Bryan.

Following these distributions, Danny submitted additional accountings to the probate court

indicating he had also distributed the 2000 Lincoln Navigator and the $156,000 debt Grady


3. As noted by the probate court, the appraised value of Pools & More, Inc. listed on Danny's original schedule
of assets was a rounded-up from the exact amount of $187,572, an amount representing Lenna's purported
84% interest in the business at the time of her death.

4. Although it does not appear to have any impact on this case, we note that Grady, without any authority to
do so, caused the dissolution of Pools & More by falsely representing himself as Pools & More sole owner
and president in filings submitted to the Ohio Secretary of State.
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owed to the estate to Gwendolyn.              These additional accountings, one of which was

considered Danny's final accounting of the estate, further indicated that Jennifer received

her mother's household furnishings and a 2000 Ford Windstar, a vehicle the parties agree

had never been listed as an estate asset.5 Shortly after these distributions were made,

Bryan sold the Friend Road property to a nearby farmer for $100,000. It is undisputed that

the farmer who purchased the Friend Road property had previously leased that same

property in 2011 and 2012 for a total of $7,400.

        {¶ 11} On January 15, 2014, Jennifer sent a letter to the probate court expressing

her concern that her interest in her mother's estate may be impacted by Danny's recent

imprisonment following his conviction for rape. As part of this letter, Jennifer also stated, in

pertinent part:

                I am aware that there is a long standing familial feud between
                my father "Grady" and my brothers, however it has nothing to
                do with me and yet I fear that as this feud continues I may be
                simply collateral damage in a family feud where my interest is of
                no concern.

                Four years ago my father stood in front of me and told me that
                he would "bankrupt" the estate before he would allow the four
                "heirs" to take what he considered "his money." My mother
                passed a few short months after their divorce was final and my
                father to this day blames my brothers for it citing that they "talked
                her into it so that they could take his (Grady's) business away
                from him."

        {¶ 12} On February 28, 2014, upon learning Danny was in prison and Bryan was no

longer a practicing attorney, the probate court appointed Jennifer to replace Danny as the

administrator of the estate. Jennifer accepted her appointment as the administrator on

March 19, 2014. A few months later, on July 10, 2014, Jennifer, as the administrator of the


5. The record indicates Gwendolyn had previously sold her interest in her mother's estate to her father Grady
for $80,700, an agreement that required Grady to pay Gwendolyn $20,200 at the time the agreement was
signed with the remaining $60,500 paid in 55 monthly installments of $1,100. The record is unclear as to how
much money, if any, Grady has paid to Gwendolyn under the terms of this agreement.
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estate, filed a complaint against her father, Grady, and her three siblings, Danny, Bryan,

and Gwendolyn, claiming they had concealed, embezzled, wrongfully retained, and/or

wrongfully depleted the assets of the estate; most notably the estate's interest in the now

defunct Pools & More.         The complaint was brought pursuant to R.C. 2109.50, which

provides that any interested party may file a proceeding in the probate court against any

person alleged to have concealed, embezzled, conveyed away or in possession of monies

or assets of an estate.

       {¶ 13} After a number of delays, the matter was tried to the probate court bench on

October 11, 2016. Due to time constraints, the matter was then continued in progress until

January 24, 2017 before being completed the following day on January 25, 2017. During

trial, the probate court heard testimony from Grady, Danny (via video conference from the

Chillicothe Correctional Institution), Bryan, Jennifer, and the nearby farmer who purchased

the Friend Road property.6 We note, however, that prior to hearing any witness testimony,

the probate court rejected Danny and Bryan's claim that their mother's estate included only

an 84% interest in Pools & More's "outstanding shares of stock." The probate court instead

found that based on the language contained in Lenna and Grady's divorce decree,

"[e]verything about that business is part of this estate," such as its inventory and equipment,

most of which had since been sold, "and we're going to hear about it." Concluding, the trial

court stated:

                I don't like it when families help to themselves, uh, and they don't
                follow the process and they throw it at me and I'm expected to
                read people's minds, and I have to decide what's true or not
                based upon what I hear in this witness box.

                And I guarantee you, I'm going to hear at least a hundred things
                that you all are not going to agree to. And you're going to look

6. Noticeably absent from these proceedings was Gwendolyn, who the record indicates was either in prison,
one of several drug rehabilitation programs, or the county jail.
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              at me and say, well, you tell me what happened. And I'm going
              to say, folks, I didn't even know you back then. I don't know you
              now. I don't know who's telling me the truth and who's not.
              Sometimes you can pick up on a few cues and see. I get to
              weigh credibility. But we're going to go back seven years. It's
              a mess.

The record also indicates that after reconvening on January 24, 2017, the probate court

prohibited Jennifer's expert witness from testifying at trial. The probate court also struck

from the record that expert's appraisal of Pools & More that Jennifer attempted to submit

as evidence. In so holding, the probate court stated:

              [Y]ou can't just – when I start a trial and I have to continue it in
              progress because of a time limitation, that freezes everything.
              You don't get to go out there and shore up the rest of your
              evidence and pick up additional facts and additional witnesses,
              especially one as serious as an expert that was just thrown at
              them at the last minute.

       {¶ 14} After reviewing the lengthy transcript of the probate court proceedings, it is

clear that Danny and Bryan believed they were administering the estate pursuant to a

"global" agreement between themselves and their two sisters, Jennifer and Gwendolyn.

However, not only did Danny and Bryan not obtain the probate court's approval to make

many of these distributions, Jennifer specifically testified that she never entered into any

such "global" agreement regarding the distribution the estate. Rather, as Jennifer testified:

              It wasn't. It was never really talked about. I mean, we didn't like
              say, okay, well, you're going to get Friend Road and you're
              going to get Heritage Road and you're going to get this and
              you're going to get that. That didn't happen. Not around me.

       {¶ 15} Jennifer also testified that whenever she asked Danny and Bryan about the

administration of the estate that she "was always told, we got this; I can explain it to you,

but I can't understand it for you; just trust me." To this, Danny stated that "[t]here's a lot of

Jenny's testimony that is absolutely a flat lie." Understandably frustrated, the probate court

responded by stating, "I don't think I've ever seen anything handled so poorly in my life.

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And because of that, now we're going to have to try and – and resolve all these issues."

Concluding, the probate court stated, "[e]verything that happened in this case is a

catastrophic mistake, everything, from the start until now."

       {¶ 16} On February 22, 2017, the probate court issued a decision finding Danny and

Bryan guilty of concealing a portion of their mother's estate, particularly that of Pools & More

and the Friend Road property. Specifically, as relevant to those two assets, the probate

court determined, in pertinent part, the following.

                                        Pools & More

       {¶ 17} As it relates to Pools & More, the probate court stated:

              The Court would have expected to receive something a little
              more formal than what was presented by Bryan as evidence of
              his deal to purchase part of the pool business from Grady and
              Lenna. However, the Court is convinced that the purchase was
              underway and by the time Lenna passed away, Bryan had paid
              enough money to become a 16% shareholder in Pools and
              More. The Court makes this finding notwithstanding the divorce
              decree states that Lenna was to be the "sole" owner of Pools
              and More. The dollar amount of this assets was derived by an
              appraiser. In her professional opinion, only the inventory and
              equipment had a value. The business itself was listed at zero
              dollars. The total amount for the inventory and equipment was
              appraised to be $223,300. The Court finds that the Estate only
              owned 84% of this, and based upon this appraisal, $187,572
              should have flowed through the Estate as an Estate asset.

       Continuing, the probate court stated:

              Based upon the evidence presented, the Plaintiff failed to prove
              to the Court that the continued operation of the pool
              business(es) yielded money that would be an Estate asset.
              Clearly, money came in and money went out. Expenses were
              paid and salaries were taken.          However, upon close
              examination of the accountings that were provided for Pool (sic)
              and More and its successor company (which were voluminous),
              the Court finds that the income stream and outlay of
              expenditures were merely a wash and valueless to the Estate.

Concluding, the probate court found Danny guilty of concealing 50% of the appraised value


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of Pools & More's inventory and equipment in the amount of $111,650, whereas Bryan,

who, as noted above, the probate court found had a 16% ownership interest in the business,

was found guilty of concealing 34% of Pools & More's inventory and equipment in the

amount of $75,922.

                                  Friend Road Property

      {¶ 18} As it relates to the Friend Road property, the probate court found no harm in

how the property was deeded to Bryan through a series of quitclaim deeds from Danny,

Jennifer, and Gwendolyn before being sold to the nearby farmer for $100,000. However,

the probate court did take exception to the rents Danny and Bryan received from leasing

the Friend Road property to that farmer. Specifically, the probate court stated:

             What the Court does find fault in relates to the rent monies that
             were received prior to the property being quit-claimed over to
             Bryan. Fifty percent of this land belonged to Bryan individually
             and the remaining fifty percent belonged to the Estate. Half of
             the rent money received until the entire property became
             Bryan's should have been included as an asset of the Estate.
             Instead, Danny and Bryan kept the rents for themselves, not
             giving any of it to their sisters Jennifer and Gwen.

Upon finding Danny and Bryan guilty of concealing the rent money received from the Friend

Road property, the probate court then stated:

             The final issue involving this property involves Bryan selling this
             for an amount greater than the appraised value. This is
             immaterial to the within matter. No one gave me any reason to
             believe the appraised value was incorrect; therefore, it is simply
             Bryan's good fortune that he sold that property for more than
             what it was worth at the time of Lenna's death.

      {¶ 19} On March 3, 2017, Danny moved the probate court to issue findings of fact

and conclusions of law regarding (1) its decision finding he and Bryan had concealed assets

belonging to Pools & More from the estate, and (2) its decision regarding the rents he and

Bryan received from leasing the Friend Road property to the nearby farmer. To that, on


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March 8, 2017, the probate court issued findings of fact and conclusions of law as it relates

to these two assets as follows.

                                       Pools & More

      {¶ 20} Initially, as it relates to Pools & More, the probate court stated:

             Danny Green questions how the Court concluded that the
             inventory and equipment of Pools and More were assets of the
             Estate and therefore concealed.

             The Court notes that when Danny Green was the Fiduciary, he
             himself listed on the Inventory and Appraisal, and more
             specifically on the Schedule of Assets, that Pools and More
             Business (84% interest) was an asset of the Estate and listed a
             value of $187,600. This amount was derived from an appraisal
             by Gail Berry who placed this value on the inventory of the
             business and no money for the business entity itself.

             Throughout the life of this case, this item has always been listed
             as an Estate asset. Therefore, based upon the Fiduciary's
             classifying this as an Estate asset, and the testimony presented
             during the hearings, the Court concluded that the inventory
             listed for Pools and More was an Estate asset.

      Concluding, the probate court stated:

             Further, the fact that none of this money was ever paid into the
             Estate and the inventory was kept by Danny and Bryan Green
             for their sole benefit was sufficient for the Court to conclude that
             the asset was concealed.

                                  Friend Road Property

      {¶ 21} Next, as it relates to the Friend Road property, the probate court stated that

upon further review:

             [T]he Court agrees that in Ohio, title to real estate passes by
             operation of law at the moment of decedent's death. * * *
             Additionally, rent money from this property, likewise belongs to
             the heirs and not to the Estate. It is clear that these monies
             were kept by Danny and Bryan and not shared with Jennifer and
             Gwen; however, since these monies were not Estate assets,
             Danny and Bryan cannot be guilty of concealing them.

      {¶ 22} On March 8, 2017, Danny moved the probate court for a new trial. In support

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of this motion, Danny argued the probate court's decision "was not sustained by the weight

of the evidence, was contrary to law, and was excessive, appearing to have been given

under the influence of prejudice." Later that same day, the probate court issued a decision

denying Danny's motion for a new trial upon finding the record was devoid of any evidence

indicating it had acted out "of passion or prejudice against any of the parties."

                                           Analysis

       {¶ 23} Both Danny and Jennifer, as the administrator of the estate, now appeal from

the probate court's decision, raising a total of five assignments of error for review. As part

of their assignments of error, it is clear that Danny and Jennifer disagree with the steps the

probate court took in order to craft a fair and equitable decision in hopes of finally putting

this case to bed. After a thorough review of the record, we commend the probate court for

its efforts in tackling this case head-on by providing a well-reasoned and thoughtful decision

for our review. Surely, just as the probate court warned, when dealing with such contentious

issues, it is nearly impossible to render a decision that is satisfactory to all parties involved.

Nevertheless, while we certainly understand each of the parties' positions, when

considering the facts and circumstances of this case, we affirm the probate court’s decision

as modified.

                                     Standard of Review

       {¶ 24} Although concealed through a number artful disguises, Danny and Jennifer

generally contend that several of the probate court's findings leading up to its ultimate

decision to find Danny and Bryan guilty of concealing estate assets were against the

manifest weight of the evidence. "The standard of review for a manifest weight challenge

in a civil case is the same as that applied to a criminal case." Dunn v. Clark, 12th Dist.

Warren No. CA2015-06-055, 2016-Ohio-641, ¶ 8, citing Eastley v. Volkman, 132 Ohio St.3d


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328, 2012-Ohio-2179, ¶ 17. Thus, in considering a manifest weight challenge, a reviewing

court weighs the evidence and all reasonable inferences, considers the credibility of

witnesses and determines whether in resolving conflicts in the evidence, the finder of fact

clearly lost its way and created a manifest miscarriage of justice warranting reversal and a

new trial ordered. Hacker v. House, 12th Dist. Butler No. CA2014-11-230, 2015-Ohio-4741,

¶ 21, citing Eastley at ¶ 20. A judgment will not be reversed as being against the manifest

weight of the evidence where the judgment is supported by some competent, credible

evidence going to all essential elements of the case. Sterling Constr., Inc. v. Alkire, 12th

Dist. Madison No. CA2016-12-032, 2017-Ohio-7213, ¶ 8.

                    Statutory Concealment Action and R.C. 2109.50

       {¶ 25} As noted above, Jennifer, as the administrator of the estate, filed a complaint

pursuant to R.C. 2109.50 alleging her father, Grady, and her three siblings, Danny, Bryan,

and Gwendolyn, had concealed, embezzled, wrongfully retained, and/or wrongfully

depleted the assets of the estate. As noted above, pursuant to that statute, any interested

party may file a proceeding in the probate court against any person alleged to have

concealed, embezzled, conveyed away or in possession of monies or assets of an estate.

A claim brought pursuant to R.C. 2109.50 "is a special proceeding of a summary,

inquisitorial character whose purpose is to facilitate the administration of estates by

summarily retrieving assets that rightfully belong there." Id. at ¶ 14, citing In re Estate of

Fife, 164 Ohio St. 449 (1956), paragraphs one and two of the syllabus. As a result, "the

inquiry under R.C. 2109.50 focuses on the ownership of the asset and whether possession

of the asset is being impermissibly concealed or withheld from the estate." Wozniak v.

Wozniak, 90 Ohio App.3d 400, 407 (9th Dist.1993).           A party who is found guilty of

misappropriating estate assets may have a judgment in the amount of the proceeds or


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assets issued against them along with a ten percent statutory penalty. State v. Harmon,

5th Dist. Tuscarawas No. CA2016AP080042, 2017-Ohio-320, ¶ 13.

                             The Parties' "Global" Agreement

       {¶ 26} Danny argues the probate court erred by finding there was no "global"

agreement between himself and his three siblings, Bryan, Jennifer, and Gwendolyn, as to

how the estate should be distributed. In support of this claim, Danny argues the probate

court improperly "made up its mind" on several issues before any witness testimony had

been heard. Danny also argues that by finding no "global" agreement was formed, the

probate court ignored the "only reasonable explanation" for how he and Bryan decided to

distribute the estate assets. Thus, according to Danny, by finding there was no "global"

agreement between the parties, the probate court allowed Jennifer to perpetuate her

"money grab" against the estate. We disagree with Danny's claim.

       {¶ 27} Danny's argument raises a number of novel issues, none of which are

supported by the record. For instance, while Danny claims the probate court improperly

"made up its mind" on several issues before any witness testimony had been heard, this

ignores the fact that the probate court then sat through three full days of trial hearing

seemingly countless hours of testimony from not only Danny himself, but also from his

siblings Bryan and Jennifer, as well as his father Grady. Moreover, while it is certainly true

that Danny and Bryan both testified that a global agreement had been reached between the

parties as to how their mother's estate should be distributed, Jennifer explicitly testified that

she was not privy to any such agreement. Again, as Jennifer testified:

              It wasn't. It was never really talked about. I mean, we didn't like
              say, okay, well, you're going to get Friend Road and you're
              going to get Heritage Road and you're going to get this and
              you're going to get that. That didn't happen. Not around me.

       {¶ 28} After a thorough review of the record, it is clear the probate court found Danny

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and Bryan's claim that a global agreement had been reached between the parties as to how

the estate should be distributed lacked credibility. The probate court specifically stated as

such as part of its findings of fact wherein it noted that its decision was reached after "taking

into consideration the credibility of each witness." As the trier of fact, the probate court

observes the witnesses and their demeanor, gestures, and voice inflections, making it the

best judge of credibility. In re Estate of Burton, 12th Dist. Warren No. CA2015-12-110,

2016-Ohio-2683, ¶ 8, citing In re Estate of Kendall, 171 Ohio App.3d 109, 2007-Ohio-1672,

¶ 23 (2d Dist.). "[A] finding of an error in law is a legitimate ground for reversal, but a

difference of opinion on credibility of witnesses and evidence is not." Seasons Coal Co. v.

City of Cleveland, 10 Ohio St.3d 77, 81 (1984). Therefore, while there may be some

circumstantial evidence indicating a global agreement had been reached, we will not

reverse the probate court's decision holding the opposite to be true.

       {¶ 29} In so holding, we note that even if the probate had found that a global

agreement had been reached, as previously determined by the Ohio Supreme Court in

Zuendel v. Zuendel, 63 Ohio St.3d 733, 737 (1992):

              a probate court does not have jurisdiction to render a
              declaratory judgment as to the validity or enforceability of a
              contract providing for a division of the testator's estate different
              from that provided in the will. Such contracts are not directly
              related to the administration of the testator's estate.

Therefore, at least as it relates to a statutory concealment action brought pursuant to R.C.

2109.50, any attempts by Danny and Bryan to circumvent their mother's wishes as

expressed by her last will and testament through an alleged "global" agreement between

the parties would be for naught. Danny's argument to the contrary lacks merit.

               The Exclusion of Expert Witness Testimony and Evidence

       {¶ 30} Jennifer argues the probate court erred by prohibiting her expert from


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testifying at trial and by striking from the record her expert's appraisal of Pools & More.

According to Jennifer, her expert's appraisal of the business should not have been stricken

from the record since it was more accurate than the appraisal provided by Berry, thus

rendering all of the probate court's subsequent decisions regarding Pools & More "in error

simply because of a faulty starting point." However, as the record reveals, and just as the

probate court found, Jennifer attempted to introduce this so-called "new" evidence after the

first day of trial had already concluded. Again, as the probate court stated when issuing its

decision to exclude this evidence at trial:

              [Y]ou can't just – when I start a trial and I have to continue it in
              progress because of a time limitation, that freezes everything.
              You don't get to go out there and shore up the rest of your
              evidence and pick up additional facts and additional witnesses,
              especially one as serious as an expert that was just thrown at
              them at the last minute.

       {¶ 31} We agree with the probate court's decision to exclude this evidence at trial,

and further deny Jennifer's request for this court to remand this matter for further

proceedings so that the probate court can "get the 'right' answer" regarding the true value

of Pools & More at the time of Lenna's death. Nothing about her expert's opinion regarding

the value of Pools & More can be considered "newly discovered" evidence as Jennifer now

suggests.   In so holding, we specifically reject Jennifer's claim that Berry, a certified

appraiser employed by Sibcy Cline Realtors, was somehow not qualified to appraise the

business. This is particularly true here considering Jennifer never objected to Berry’s

appointment as the appraiser of her mother's estate.

       {¶ 32} Our holding is further supported by the fact that, in accordance with R.C.

2115.16, Jennifer could have filed exceptions to the inventory as appraised by Berry that

Danny submitted to the probate court for approval.            Jennifer never filed any such

exceptions. As a result, pursuant to R.C. 2115.17, that appraisal was rendered conclusive

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for all purposes impacting this appeal. Therefore, while Jennifer may now disagree with

Berry's appraisal of Pools & More, based on the record properly before this court, we find

no error in the trial court's decision. Jennifer's argument is without merit.

                                        Pools & More

       {¶ 33} Danny and Jennifer raise a number of issues regarding the probate court's

decisions involving the ownership interests, value, and distribution of Pools & More. In this

court's attempt at brevity, these issues will be addressed together when possible.

                                 The Value of Pools & More

       {¶ 34} Both Danny and Jennifer challenge the probate court's decision finding the

value of Pools & More to be $223,300. On the one hand, Danny argues the trial court erred

by finding the inventory and equipment owned by Pools & More at the time of his mother's

death valued at $223,300 were estate assets "rather than the shares of stock in Pools &

More that Lenna owned at the time of her death." Thus, according to Danny, because Berry

appraised Pools & More as having no value as a business entity exclusive of its inventory

and equipment, neither he nor Bryan could be found guilty of concealing those assets from

their mother's estate.

       {¶ 35} On the other hand, attacking the probate court's decision on a more

fundamental level, Jennifer argues the probate court erred by adopting Berry's appraisal

finding Pools & More had no value as a business entity exclusive of its inventory and

equipment. In support of this claim, Jennifer argues the probate court's decision was

improper since Berry, to no fault of her own, failed to include in her appraisal any monies

that were in Pools & More’s operating account at the time of Lenna's death, monies that




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Danny conceded at trial amounted to approximately $20,000.7 Jennifer also argues the

probate court's decision adopting Berry's appraisal was in error since Danny and Bryan

continued to operate the business in the years following their mother's death, which resulted

in the business generating nearly $1,500,000 in revenue.

        {¶ 36} As it relates to Danny's claims that the estate interest in Pools & More was

limited to the shares of stock his mother owned at the time of her death, we find such claim

lacks merit. Just as the trial court found, based on the language contained in Lenna and

Grady's divorce decree, "[e]verything about that business is part of this estate," such as its

inventory and equipment, most of which had since been sold, "and we're going to hear

about it." We agree. In so holding, while there was some reference to Pools & More’ shares

of stock, we note that the record is devoid of any evidence indicating Pools & More ever

issued any shares to either of its two original owners, Lenna and Grady. Our holding is

further supported by the fact that when confronted with this very issue, the probate court

found such claim lacked credibility, stating "[t]his business has shares of stock? I find that

hard to believe when that agreement was written on a napkin, it looks like." We find no

error in the probate court's decision.

        {¶ 37} Moving now to Jennifer's claims, since Danny conceded the issue at trial, we

agree the probate court erred by not including an additional $20,000 to Berry’s appraised

value of Pools & More given the fact there is no dispute that money was in Pools & More’s

operating account at the time of Lenna's death. That money is therefore an estate asset

subject to distribution. However, as it relates to the nearly $1,500,000 in revenue Pools &

More generated in the years following their mother's death, just as the probate court found,



7. Although the record is not definitive, it appears that neither Danny nor Bryan ever informed (or provided
any documentation to) Berry indicating Pools & More had any monies in its operating account at the time of
Lenna's death.
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while there is no question that Pools & More generated some business, "after all the

expenses were paid," including limited employee salaries to Danny and Bryan, "the net

effect was the business had no value – which is precisely what Gail Berry said right after

Lenna passed away." We find no error in the probate court's decision.

       {¶ 38} In so holding, we note that the probate court also stated:

              Based on the evidence presented, the Plaintiff failed to prove to
              the Court that the continued operation of the pool business(es)
              yielded money that would be an Estate asset. Clearly, money
              came in and money went out. Expenses were paid and salaries
              were taken.      However, upon close examination of the
              accountings that were provided for Pools and More and its
              successor company (which were voluminous), the Court finds
              that the income stream and outlay of expenditures were merely
              a wash and valueless to the Estate.

       {¶ 39} Just as the probate court before us, this court has also conducted a thorough

review of the record. Our review, however, has not uncovered any error in the probate

court's decision aside from its failure to include an additional $20,000 to Berry’s appraisal

of Pools & More. As Bryan stated, and as the record fully supports, "[t]hat business was

sinking faster than the Titanic." In reaching this decision, we disagree with Jennifer's claim

that Danny and Bryan had depleted any profits Pools & More made by providing themselves

with excessive yearly salaries. As the record indicates, even when applying Jennifer's own

calculations that Danny and Bryan paid themselves salaries totaling $211,913.68, when

extrapolated over the seven-year period for which the business continued to operate, this

amounts to just over $15,000 a year. As noted by the probate court, and for which we

certainly agree, this is "hardly an exorbitant amount." Therefore, aside from its failure to

include an additional $20,000 to Berry’s appraisal of Pools & More, we find no error in the

probate court's decision.

                     Bryan's 16% Ownership Interest in Pools & More


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      {¶ 40} Jennifer argues the trial court erred by finding Bryan owned a 16% interest in

Pools & More at the time of their mother's death. According to Jennifer, although Bryan

and Grady both testified that Bryan had purchased a 16% interest in the business before

Lenna's passing, "Grady and Bryan lied." However, while Jennifer may disagree, the

probate court clearly found the testimony offered by Bryan and Grady regarding Bryan's

alleged 16% ownership in Pools & More to be credible. Again, as the probate court explicitly

stated:

             The Court would have expected to receive something a little
             more formal than what was presented by Bryan as evidence of
             his deal to purchase part of the pool business from Grady and
             Lenna. However, the Court is convinced that the purchase was
             underway and by the time Lenna passed away, Bryan had paid
             enough money to become a 16% shareholder in Pools and
             More.

      {¶ 41} As noted above, "a finding of an error in law is a legitimate ground for reversal,

but a difference of opinion on credibility of witnesses and evidence is not." Seasons Coal

Co., 10 Ohio St.3d at 81. Therefore, because Bryan's ownership interest in Pools & More

revolved around an issue of witness credibility, we will not reverse the probate court's

decision. Jennifer's argument to the contrary is therefore without merit.

                                  Friend Road Property

      {¶ 42} Just as with the issues involving Pools & More, Danny and Jennifer also raise

a number of issues regarding the probate court's decisions involving the Friend Road

property. Again, in this court's attempt at brevity, these issues will be addressed together

when possible.

                      Rents Received from the Friend Road Property

      {¶ 43} Jennifer argues the probate court erred by finding the rents Danny and Bryan

received from the Friend Road property following their mother's death could not be


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recovered by the estate through her concealment action. The parties do not dispute that

Danny and Bryan received $7,400 in rental payments from their mother's share of the Friend

Road property after their mother's passing. What the parties do dispute, however, is

whether the probate court should have ordered those rents be recouped from Danny and

Bryan so that they could be included in the estate subject to equal distribution between the

parties as part of Jennifer's statutory concealment action.

       {¶ 44} Although the probate court originally determined that Danny and Bryan could

be found guilty under R.C. 2109.50 of concealing the rents they received from the Friend

Road property, the probate court later revisited that decision and found the rents were not

estate assets, and therefore, "Danny and Bryan cannot be found guilty of concealing them."

As noted above, the probate court based its decision on the fact that "title to real estate

passes by operation of law at the moment of decedent's death." As a result, the probate

court determined that the rents received from the Friend Road property "belongs to the heirs

and not to the Estate."

       {¶ 45} We agree with the probate court's decision finding Danny and Bryan could not

be found guilty of concealing the rents they received from the Friend Road property in a

statutory concealment action. This is because, just as the trial court found, the rents

received from the Friend Road property were neither monies nor assets of their mother's

estate. Our holding, however, should not be read to preclude either Jennifer or Gwendolyn

from pursuing another civil remedy in an effort to recoup their share of the rents from Danny

and Bryan individually. Therefore, while we believe Danny and Bryan acted improperly by

not giving Jennifer and Gwendolyn their fair share of the rents from the Friend Road

property, the probate court correctly determined that Danny and Bryan could not be found

guilty of concealing those rents in a statutory concealment action. Jennifer's argument to


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the contrary is without merit.

                           Sale Price of the Friend Road Property

       {¶ 46} Jennifer next argues the probate court erred by finding Bryan had not

concealed $25,000 from the estate resulting from the sale of the Friend Road property for

$100,000 when Berry had previously appraised the property at $75,000 at the time of

Lenna's death. In support of this claim, Jennifer argues that it was improper for the probate

court not to include this $25,000 "profit" as an estate asset. However, as noted above, title

to the Friend Road property passed by operation of law at the time of Lenna's death. As a

result, any alleged "profit" from the sale of the Friend Road property cannot be considered

an estate asset. Just as the probate court found, "it is simply Bryan's good fortune that he

sold that property for more than what it was worth at the time of Lenna's death." Finding no

error in the probate court's decision, Jennifer's argument is without merit.

                                         Damages

       {¶ 47} In light of the forgoing, and after considering all of Danny and Jennifer's

arguments raised herein, we affirm as modified the probate court's decision, thereby finding

Danny and Bryan guilty of concealing estate assets from Pools & More totaling $243,300,

Danny being responsible for 50% of that sum with Bryan being responsible for the remaining

34% (after subtracting his 16% ownership interest in the business). Anticipating the estate

would get a decision rendered in its favor, Jennifer, as the administrator of the estate, has

provided this court with several methods on how she believes this court should calculate

damages. However, many of her suggestions are based on faulty logic and/or directly

contradictory to our holdings above. Therefore, Jennifer's arguments regarding the proper

method to calculate damages are overruled.

       {¶ 48} Danny has also provided this court with his suggestion on how damages


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should be awarded. Specifically, relying on R.C. 2109.52, Danny argues the trial court erred

by awarding a money judgment rather than ordering restoration in kind through the return

of any remaining assets belonging to Pools & More. However, as provided in R.C. 2109.52,

if a person is found guilty of concealing or embezzling estate assets under R.C. 2109.50,

such as Danny and Bryan here:

              the probate court shall assess the amount of damages to be
              recovered or the court may order the return of the specific thing
              concealed or embezzled or may order restoration in kind.

(Emphasis added.)

       {¶ 49} As the plain language of that statute reveals, and while Danny understandably

prefers an order of restoration in kind, that is only one of the options available to the probate

court when assessing the amount of damages to be recovered in a statutory concealment

action. That is because, as noted by the Ohio Supreme Court, "[i]n statutory construction,

the word 'may' shall be construed as permissive and the word 'shall' shall be construed as

mandatory unless there appears a clear and unequivocal legislative intent that they receive

a construction other than their ordinary usage." Dorrian v. Scioto Conservancy Dist, 27

Ohio St.2d 102 (1971), paragraph one of the syllabus. We therefore find no error in the

probate court's decision to award a money judgment rather than ordering restoration in kind.

That is particularly true here when considering, contrary to Danny's claim otherwise, much

of Pools & More's inventory and equipment had since been sold. Danny's argument

otherwise lacks merit.

                                         Conclusion

       {¶ 50} Modifying the probate court's decision to conform to this court's holding, we

find: (1) Danny guilty of concealing and/or embezzling estate assets belonging to Pools &

More in the amount of $121,650; and, (2) Bryan guilty of concealing and/or embezzling


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estate assets belong to Pools & More in the amount of $82,722, both figures that are subject

to a ten percent penalty plus costs pursuant to R.C. 2109.52. Therefore, when aggregating

these dollar amounts with the ten percent penalty as provided by in R.C. 2109.52, the estate

is hereby awarded money judgments against (1) Danny in the amount of $133,815

($121,650 + $12,165) plus costs; and, (2) Bryan in the amount of $90,994.20 ($82,722 +

$8,272.20) plus costs. Neither party will be completely satisfied with this court's decision.

Nevertheless, to the extent not otherwise stated, Danny and Jennifer's five assignments of

error are overruled and the probate court's decision is affirmed as modified. We find such

decision equitable and necessary to reach finality in this case as the administration of the

estate is now stretching into its ninth year.

       {¶ 51} Judgment affirmed as modified.


       HENDRICKSON, P.J., and RINGLAND, J., concur.




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