[Cite as Estate of Kretzler v. Kretzler, 2015-Ohio-4776.]


                                         COURT OF APPEALS
                                      FAIRFIELD COUNTY, OHIO
                                     FIFTH APPELLATE DISTRICT


ESTATE OF FREDERICK J. KRETZLER, III                        :   JUDGES:
                                                            :   Hon. William B. Hoffman, P.J.
KELLI J. WILBURN                                            :   Hon. Patricia A. Delaney, J.
                                                            :   Hon. Craig R. Baldwin, J.
         Plaintiff – Appellant                              :
                                                            :
-vs-                                                        :
                                                            :
DEBRA J. KRETZLER                                           :   Case No. 15-CA-18
                                                            :
        Defendant - Appellee                                :   OPINION



CHARACTER OF PROCEEDING:                                        Appeal from the Fairfield County
                                                                Court of Common Pleas, Probate
                                                                Division, Case No. 69088-A



JUDGMENT:                                                       Affirmed



DATE OF JUDGMENT:                                               November 19, 2015




APPEARANCES:

For Plaintiff-Appellant                                         For Defendant-Appellee

JAMES R. KINGSLEY                                               LEO J. HALL
157 West Main Street                                            Margulis, Gussler & Hall
Circleville, OH 43113                                           P.O. Box 5
                                                                50 Bortz St.
                                                                Ashville, OH 43103
Fairfield County, Case No. 15-CA-18                                                        2



Baldwin, J.

       {¶1}   Plaintiff-appellant Kelli J. Wilburn appeals from the February 27, 2015

Judgment Entry of the Fairfield County Court of Common Pleas, Probate Division,

granting the Motion for Summary Judgment filed by defendant-appellee Debra J.

Kretzler.

                           STATEMENT OF THE FACTS AND CASE

       {¶2}   Frederick J. Kretzler, III aka Fredrick Joseph Kretzler and appellee Debra

J. Kretzler were married on June 1, 1985. The two had no children together, although

Frederick J. Kretzler, III had one child from a former marriage, appellant Kelli J. Wilburn.

       {¶3}   In 1995, Frederick J. Kretzler, III executed a Last Will and Testament

prepared by Attorney Melody Lu Steely leaving everything to appellee if she survived

him and if not, leaving one-sixth of his estate to appellant. On June 7, 2013, he

executed another Last Will and Testament prepared by the same attorney leaving

everything to appellee if she survived him and nothing to appellant. Several weeks prior

to his death, Frederick J. Kretzler, III executed four deeds in such a way that, upon his

death, appellee would be the sole owner of the real estate in question.

       {¶4}   On June 27, 2013, Frederick J. Kretzler, III, who was suffering from

cancer, committed suicide. His Last Will and Testament was admitted to probate on

December 13, 2013.

       {¶5}   Subsequently, on February 7, 2015, appellant filed a complaint against

appellee in the Fairfield County Court of Common Pleas, Probate Division. Appellant, in

the first claim in her complaint, alleged that the 2013 will was not properly executed and

that at the time of execution, Frederick J. Kretzler, III was subject to undue influence,
Fairfield County, Case No. 15-CA-18                                                     3


duress and fraud. She asked that the 2013 will be declared void. In her second claim for

declaratory judgment, appellant alleged that the four deeds executed by her father

shortly before his death were invalid and void because her father was subject to undue

influence and fraud at the time of their execution. Appellant sought to have the transfers

rescinded, cancelled and set aside.

        {¶6}   Appellee, on March 13, 2014, filed an answer and counterclaim. In her

counterclaim, she set forth claims for intentional infliction of emotional distress and

breach of agreement relating to a business that appellant owned. On December 29,

2014, appellee filed a Motion for Summary Judgment. Appellant filed a memorandum in

opposition to the same on January 29, 2015 and appellee filed a reply on February 9,

2015.

        {¶7}   Pursuant to a Judgment Entry filed on February 27, 2015, the trial court

dismissed appellant’s second claim for lack of jurisdiction and granted appellee’s Motion

for Summary Judgment on the remaining claim. In a separate Judgment Entry filed the

same day, the trial court dismissed appellee’s counterclaims.

        {¶8}   Appellant now raises the following assignment of error on appeal:

        {¶9}   DID THE TRIAL COURT COMMIT PREJUDICIAL ERROR WHEN IT

GRANTED SUMMARY JUDGMENT?

                                       Summary Judgment

        {¶10} Civ.R. 56 states, in pertinent part:

                      Summary judgment shall be rendered forthwith if the

               pleadings, depositions, answers to interrogatories, written

               admissions, affidavits, transcripts of evidence, and written
Fairfield County, Case No. 15-CA-18                                                    4


             stipulations of fact, if any, timely filed in the action, show that

             there is no genuine issue of material fact and that the

             moving party is entitled to judgment as a matter of law. No

             evidence or stipulation may be considered except as stated

             in this rule. A summary judgment shall not be rendered

             unless it appears from the evidence or stipulation, and only

             from the evidence or stipulation, that reasonable minds can

             come to but one conclusion and that conclusion is adverse

             to the party against whom the motion for summary judgment

             is made, that party being entitled to have the evidence or

             stipulation construed mostly strongly in the party's favor. A

             summary judgment, interlocutory in character, may be

             rendered on the issue of liability alone although there is a

             genuine issue as to the amount of damages.

      {¶11} A trial court should not enter a summary judgment if it appears a material

fact is genuinely disputed, nor if, construing the allegations most favorably towards the

non-moving party, reasonable minds could draw different conclusions from the

undisputed facts. Hounshell v. Am. States Ins. Co., 67 Ohio St.2d 427, 424 N.E.2d 311

(1981). The court may not resolve any ambiguities in the evidence presented. Inland

Refuse Transfer Co. v. Browning–Ferris Inds. of Ohio, Inc., 15 Ohio St.3d 321, 474

N.E.2d 271 (1984). A fact is material if it affects the outcome of the case under the

applicable substantive law. Russell v. Interim Personnel, Inc., 135 Ohio App.3d 301,

733 N.E.2d 1186 (6th Dist.1999).
Fairfield County, Case No. 15-CA-18                                                                   5


         {¶12} When reviewing a trial court's decision to grant summary judgment, an

appellate court applies the same standard used by the trial court. Smiddy v. The

Wedding Party, Inc., 30 Ohio St.3d 35, 506 N.E.2d 212 (1987). This means we review

the matter de novo. Doe v. Shaffer, 90 Ohio St.3d 388, 2000–Ohio–186, 738 N.E .2d

1243.

         {¶13} The party moving for summary judgment bears the initial burden of

informing the trial court of the basis of the motion and identifying the portions of the

record which demonstrates absence of a genuine issue of fact on a material element of

the non-moving party's claim. Drescher v. Burt, 75 Ohio St.3d 280, 1996-Ohio-107, 662

N.E.2d 264. Once the moving party meets its initial burden, the burden shifts to the non-

moving party to set forth specific facts demonstrating a genuine issue of material fact

does exist. Id. The non-moving party may not rest upon the allegations and denials in

the pleadings, but instead must submit some evidentiary materials showing a genuine

dispute over material facts. Henkle v. Henkle, 75 Ohio App.3d 732, 600 N.E.2d 791

(12th Dist.1991).

         {¶14} It is pursuant to this standard that we review appellant’s assignment of

error.

                                                         I

         {¶15} Appellant, in her sole assignment of error, argues that the trial court erred

in granting appellee’s Motion for Summary Judgment. We disagree.

         {¶16} Appellant specifically argues that, construing the evidence in her favor, “a

jury question existed as to fraud, coercion and duress.”1 In West v. Henry, 173 Ohio St.


1Appellant, in her brief, notes that “[f]raud, duress, and undue influence are synonymous in a will
contest.”
Fairfield County, Case No. 15-CA-18                                               6


498, 501–502, 184 N.E.2d 200 (1962), the Ohio Supreme Court held the following

concerning undue influence:

                    General influence, however strong or controlling, is

            not undue influence unless brought to bear directly upon the

            act of making the will. If the will or codicil, as finally

            executed, expresses the will, wishes and desires of the

            testator, the will is not void because of undue influence.

                    The essential elements of undue influence are a

            susceptible testator, another's opportunity to exert it, the fact

            of improper influence exerted or attempted, and the result

            showing the effect of such influence.

                    The mere existence of undue influence, or an

            opportunity to exercise it, although coupled with an interest

            or motive to do so, is not sufficient, but such influence must

            be actually exerted on the mind of the testator with respect

            to the execution of the will in question. It must be shown that

            such influence, whether exerted at the time of the making of

            the will or prior thereto, was operative at the time of its

            execution or was directly connected therewith. It must be

            shown that undue influence was exercised with the object of

            procuring a will in favor of particular parties.

                    It is well stated, as follows, in 94 C.J.S. Wills § 224, p.

            1074:
Fairfield County, Case No. 15-CA-18                                                        7


                     The fact that the will of the testator of admitted

              testamentary capacity disposes of his property in an

              unnatural manner, unjustly, or unequally, and however much

              at variance with expressions by the testator concerning

              relatives or the natural objects of his bounty, does not

              invalidate the will, unless undue influence was actually

              exercised on the testator. (Emphasis omitted.)

       {¶17} Accordingly, a finding of undue influence requires: (1) a susceptible

testator, (2) another's opportunity to exert undue influence on the testator, (3) improper

influence exerted or attempted, and (4) a result showing the effect of such influence.

Redman v. Watch Tower Bible & Tract Soc. of Pennsylvania, 69 Ohio St.3d 98, 101,

1994-Ohio-514, 630 N.E.2d 676.

       {¶18} Appellee, in support of its Motion for Summary Judgment, attached the

deposition of Attorney Melody Lu Steely. Steely, during her deposition, testified that she

met with Frederick J. Kretzler, III and appellee and prepared mutual wills for them

specifying that if one of them died before the other, the survivor would inherit

everything. When asked during her deposition why appellant would not be inheriting

everything after appellee died, she testified that “he [Frederick J. Kretzler, III] indicated

he was not close to his daughter and he did not want to make any provision for her over

and above what is indicated in this will in 1995.” Deposition of Melody Lu Steely at 23.

She further testified that when she met with appellee and Frederick J. Kretzler, III on

May 9, 2013, he told her that he wanted his properties transferred on death and that he

did not want anything to go to appellant and was “adamant” about it. Id at 30. He stated
Fairfield County, Case No. 15-CA-18                                                            8


that he did not have a relationship with appellant and did not want to leave anything to

her. Steely testified that, because Frederick J. Kretzler, III was suffering from cancer,

she recommended the transfer on death or joint and survivor deeds. According to her,

Frederick J. Kretzler, III “wanted everything to go to his wife and he did not want to have

to – her to incur any more trouble or expense than necessary,…” Deposition of Melody

Lu Steely at 35. Steely later testified that Frederick J. Kretzler, III was “very competent”

and “very lucid”, both in 1995 and 2013 and that he made it “very clear” to her that he

did not want to make any provisions for appellant. Deposition of Melody Lu Steely at 53.

        {¶19} In response to appellee’s motion, appellant submitted, in part, her own

affidavit. Appellant, in her affidavit, alleged that she was close with her father and saw

him weekly during his cancer battle and went to all of his surgeries in 2013. She further

alleged that when she was away at college, appellee canceled her health insurance and

that appellee was resentful of appellant’s pregnancy in 1996 and made excuses for

Frederick J. Kretzler, III not to visit. Appellant further alleged, in relevant part, as follows:

        {¶20} 9. Debra [appellee] told my father I was planning a divorce after 6 months

of marriage and an abortion for my first child. I confronted dad and discovered Debra

was on the speaker phone. She admitted she told this to my aunt Kim. This was not

true.

        {¶21} 10. A few weeks before he died, my father and Debra were at my house. I

told him I had sold a van for $8,500.00 which is what I paid for it 5 years before, My

father looked shocked and looked at Debra and said “you told me thirty grand”.
Fairfield County, Case No. 15-CA-18                                                   9


      {¶22} 11. I own and operate a flower shop and I agreed to sell Debra’s crafts for

her. She falsely told Frederick that I had sold crafts and not paid her her commission,

which is not true. Debra has counterclaimed for this amount in this lawsuit.

      {¶23} 12. I went to college on student loans. Frederick and Debra came to

graduation. My grandfather, Frederick Kretzler II, was a professor at Dayton University.

He asked if I had student loans and I responded yes. He then wrote me a check for

$43,000.00 stating I should not have to repay student loans as he favored education. I

was at Dad’s house. She called my grandmother, Patty Kretzler and put her on speaker

phone. She complained that I had cheated her out of her inheritance. I should pay that

amount back to the estate.

      {¶24} 13. No tox screen was run for Frederick for his suicide. As a result, the

suicide investigation and the nature of and amount of drugs, which could have

contributed to his suicide, is unknown.

      {¶25} 14. The suicide was committed in his home with Debra present.

      {¶26} 15. Very rarely was I permitted to be in the presence of my father alone.

My phone calls were put on speaker phone.          When I called his cell phone, she

answered it.

      {¶27} 16. The isolation has always been. When I was a child and was visiting

him, Debra would bring Andrea Cleveland over to play with me which prevented me

from time with my dad.

      {¶28} 17. Ever since dad started dating Debra, Debra would constantly say to

me “Your father never loved your mother”.

      {¶29} 18. Dad maintained a daily diary that is missing.
Fairfield County, Case No. 15-CA-18                                                    10


       {¶30} As noted by the trial court in its decision, appellant, in response to the

deposition testimony of Melody Lu Steely, did not present any evidence that her father

was susceptible or that “undue influence was exerted or attempted at the execution of

the will.”   Moreover, with respect to the fourth and final element of undue influence,

appellant has failed to produce evidence showing the effect of such alleged influence.

Under either the 1995 will or the 2013 will, appellant would have received nothing since

appellee was still living. We note that appellant, in her complaint, did not challenge the

1995 will.

       {¶31} Based on the foregoing, we find that appellant has failed to produce

sufficient evidence to create a genuine issue of material fact with respect to her

allegations relating to duress or undue influence.

       {¶32} As is stated above, appellant also alleged fraud in her complaint. “The

elements of fraud are: (a) a representation or, where there is a duty to disclose,

concealment of a fact, (b) which is material to the transaction at hand, (c) made falsely,

with knowledge of its falsity, or with such utter disregard and recklessness as to whether

it is true or false that knowledge may be inferred, (d) with the intent of misleading

another into relying upon it, (e) justifiable reliance upon the representation or

concealment, and (f) a resulting injury proximately caused by the reliance.” Burr v. Stark

County Bd. of Comm'rs, 23 Ohio St.3d 69, 491 N.E.2d 1101 (1986), paragraph two of

the syllabus.

       {¶33} We find that appellant had failed to set forth sufficient acts to create a

genuine issue of material fact with respect to fraud. As noted by the trial court in its

decision:
Fairfield County, Case No. 15-CA-18                                                  11


                     Attorney Steely’s extensive deposition concerning her

            conversations with Decedent and his adamant desire to

            leave his estate to his wife, Ms. Steely’s conference notes

            showing “all to each other”, Ms. Steely observations as to

            the      Decedents   “very   lucid”   and   “very   competent”

            presentations in her meetings, and the two wills from 1995

            and 2013, the only wills of the Decedent, that both leave

            Decedent’s estate to the Defendant, are evidence that fraud

            had no effect on the outcome.         Plaintiff fails to present

            evidence sufficient to create a genuine issue of fact as to

            fraud.


      {¶34} Based on the foregoing, we find that the trial court did not err in granting

appellee’s Motion for Summary Judgment.

      {¶35} Appellant’s sole assignment of error is, therefore, overruled.
Fairfield County, Case No. 15-CA-18                                               12


       {¶36} Accordingly, the judgment of the Fairfield County Court of Common Pleas,

Probate Division, is affirmed.


By: Baldwin, J.

Hoffman, P.J. and

Delaney, J. concur.
