[Cite as Miller v. Shreve, 2014-Ohio-4612.]


                                        COURT OF APPEALS
                                    GUERNSEY COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


ROBERT MILLER, EXECUTOR OF                     :   JUDGES:
THE ESTATE OF DECATUR MILLER,                  :
SR.                                            :   Hon. Sheila G. Farmer, P.J.
    Plaintiff-Appellee                         :   Hon. Patricia A. Delaney, J.
                                               :   Hon. Craig R. Baldwin, J.
-vs-                                           :
                                               :   Case No. 14CA3
                                               :
JOANN SHREVE, ET AL.                           :
                                               :
                                               :
       Defendant-Appellant                     :   OPINION


CHARACTER OF PROCEEDING:                           Appeal from the Guernsey County Court
                                                   of Common Pleas, Probate Division,
                                                   Case No. 13 PV 051761



JUDGMENT:                                          REVERSED & REMANDED




DATE OF JUDGMENT ENTRY:                            October 16, 2014




APPEARANCES:

For Plaintiff-Appellee:                            For Defendant-Appellant:

RICHARD A. BAKER                                   KENT D. BIEGLER
819 Steubenville Ave.                              TRIBBIE, SCOTT, PLUMMER et al.
Cambridge, OH 43725                                139 West 8th Street
                                                   P.O. Box 640
                                                   Cambridge, OH 43725
Guernsey County, Case No. 14CA3                                                            2

Delaney, J.

       {¶1} Defendant-Appellant Joann Shreve appeals from the January 3, 2014

Judgment Entry Final Order of the Guernsey County Court of Common Pleas, Probate

Division. Plaintiff-Appellee is Robert Miller, Executor of the Estate of Decatur Miller, Sr.

                         FACTS AND PROCEDURAL HISTORY

       {¶2} Decatur Miller, Sr. (“Decatur”) and Marguerite Miller (“Marguerite”) were

husband and wife and owned property located at 517 Orchard Avenue, Cambridge,

Ohio (the “Property”) as tenants in common. Appellant is the daughter of Decatur and

Marguerite.1

       {¶3} On June 22, 2001, Marguerite executed a durable Power of Attorney

(POA) granting Decatur or appellant the ability to act as her POA.

       {¶4} On October 20, 2003, three documents relevant to this case were

recorded: the POA on behalf of Marguerite by appellant; a quit-claim deed executed by

Marguerite, through appellant as POA, purporting to transfer Marguerite’s interest in the

Property to Decatur; and a transfer-on-death deed executed by Decatur and Marguerite,

through appellant as POA, purporting to transfer the Property to appellant.

       {¶5} Marguerite died testate on January 3, 2004.            No probate estate was

opened.

       {¶6} Decatur died testate on September 16, 2010.            His executor listed the

Property as an asset of the estate filed on November 19, 2012.




1
 Default judgment was granted against the remaining children and grandchildren of
Decatur named in his probated Will to share properties of the estate in equal shares.
Those children and grandchildren are not parties to this appeal (with the exception of
Robert Miller as the executor of Decatur’s estate).
Guernsey County, Case No. 14CA3                                                           3


         {¶7} Appellant objected to listing the Property in the inventory. A hearing was

held on January 9, 2013; appellant’s objections were overruled and the Probate Court

issued a Judgment Entry Order Approving Inventory and Appraisal. Pertinent to this

appeal, the Probate Court found, e.g., “[t]he executor has proved that the entire interest,

but maybe only an undivided one-half (1/2) interest in the real estate is a probate asset

of the estate and should be included as an estate asset (sic).” The Probate Court also

found:

               The request of the executor to settle the issue of ownership is

               denied by this Court.     The hearing was upon exceptions to the

               inventory and this court cannot render a finding as to a partial or full

               interest in the real estate. The title to the real estate should be

               settled either in the General Division or the Probate Division with all

               parties in interest due process rights protected (sic).

         {¶8} To that end, appellee filed a complaint for declaratory judgment in the

instant case on February 15, 2013, asserting the transfer of the Property to appellant

was invalid and the Property is an asset of the estate which should be distributed

according Decatur’s will.

         {¶9} On April 15, 2013, appellee filed a motion for summary judgment;

appellant responded and appellee replied.

         {¶10} The trial court granted summary judgment for appellee on January 3,

2014, finding appellant did not rebut the legal presumption of undue influence under

these circumstances, voiding the purported transfer of the Property to appellant, and

finding the Property to be an asset of Decatur’s probate estate subject to administration.
Guernsey County, Case No. 14CA3                                                          4


         {¶11} Appellant appeals from the trial court’s judgment entry of January 3, 2014.

         {¶12} Appellant raises two assignments of error:

                               ASSIGNMENTS OF ERROR

         {¶13} “I. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT

AND DECLARATORY JUDGMENT AS WELL AS THE OTHER RELIEF SOUGHT BY

PLAINTIFF FOR THE FOLLOWING REASONS: A) THE PLAINTIFF’S MOTIONS

FAILED TO SET FORWARD SPECIFIC FACTS TO ADDRESS THE VALIDITY OF

THE TRANSFER ON DEATH DEED OF DECATUR MILLER, SR.[;] B) ALTHOUGH

THE TRIAL COURT RESTRICTED THE APPLICATION OF MARGUERITE MILLER’S

POWER OF ATTORNEY AND QUIT CLAIM DEED, THE EXPRESS LANGUAGE OF

THE POWER OF ATTORNEY PERMITS THE ACTIONS TAKEN BY APPELLANT[;] C)

THE TRIAL COURT’S DETERMINATION THAT CERTAIN EXHIBITS OF APPELLANT

WERE INADMISSIBLE WAS IN ERR (sic) OF THE EXPRESS LANGUAGE OF THE

SECOND PARAGRAPH OF OHIO REVISED CODE 2317.02(A)(1) WHICH CONTAINS

AN EXCEPTION RENDERING THESE EXHIBITS ADMISSIBLE.”

         {¶14} “II. IF THE ABOVE ASSIGNMENTS STANDING ALONE FAIL TO RISE

TO THE LEVEL OF REVERSIBLE ERROR, THE CUMULATIVE WEIGHT OF THOSE

ERRORS MERIT RECONSIDERATION OF THIS MATTER.”

                                        ANALYSIS

                                            I., II.

         {¶15} Appellant’s two assignments of error will be considered together.

Appellant argues the trial court erred in granting summary judgment for appellee. We

agree.
Guernsey County, Case No. 14CA3                                                            5


       {¶16} Summary judgment motions are to be resolved in light of the dictates of

Civ.R. 56, which was reaffirmed by the Ohio Supreme Court in State ex rel. Zimmerman

v. Tompkins, 75 Ohio St.3d 447, 448, 663 N.E.2d 639 (1996):

              Civ.R. 56(C) provides that before summary judgment may be

              granted, it must be determined that (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) it appears from the

              evidence that reasonable minds can come to but one conclusion,

              and viewing such evidence most strongly in favor of the nonmoving

              party, that conclusion is adverse to the party against whom the

              motion for summary judgment is made.

              State ex rel. Parsons v. Fleming, 68 Ohio St.3d 509, 511, 628

              N.E.2d 1377 (1994), citing Temple v. Wean United, Inc. 50 Ohio

              St.2d 317, 327, 364 N.E.2d 267 (1977).

       {¶17} As an appellate court reviewing summary judgment motions, we must

stand in the shoes of the trial court and review summary judgment motions on the same

standard and evidence as the trial court. Smiddy v. The Wedding Party, Inc., 30 Ohio

St.3d 35, 36, 56 N.E.2d 212 (1987).

       {¶18} The party seeking summary judgment bears the initial burden of informing

the trial court of the basis for its motion and identifying those portions of the record that

demonstrate the absence of a genuine issue of material fact. The moving party may not

make a conclusory assertion that the non-moving party has no evidence to prove its

case. The moving party must specifically point to some evidence which demonstrates
Guernsey County, Case No. 14CA3                                                           6


the non-moving party cannot support its claim. If the moving party satisfies this

requirement, the burden shifts to the non-moving party to set forth specific facts

demonstrating there is a genuine issue of material fact for trial. Vahila v. Hall, 77 Ohio

St.3d 421, 429, 1997-Ohio-259, 674 N.E.2d 1164, citing Dresher v. Burt, 75 Ohio St.3d

280, 1996-Ohio-107, 662 N.E.2d 264.

       {¶19} Civil Rule 56(E) requires: “Supporting and opposing affidavits shall be

made on personal knowledge, shall set forth such facts as would be admissible in

evidence, and shall show affirmatively that the affiant is competent to testify to the

matters in the affidavit. Sworn or certified copies of all paper or parts of papers referred

to in an affidavit shall be attached to or served with the affidavit. The court may permit

affidavits to be supplemented or opposed by depositions or by further affidavits.”

       {¶20} The ultimate issue in this case is whether appellant as POA for Marguerite

met her burden of proof on the issue of fairness of the underlying transactions

purporting to transfer the Property to her. To meet this burden before the trial court,

appellant responded to appellee’s complaint and motion for summary judgment with,

e.g., an affidavit of Mary B. Keith, the attorney who prepared the documents, attesting to

Decatur’s intent in effectuating the transfer of the Property by means of the quit-claim

deed and transfer-on-death deed.

       {¶21} As POA and donee of the Property, appellant bears a significant burden of

proof. “A power of attorney * * * is a written instrument authorizing an agent to perform

specific acts on behalf of the principal.” In re Guardianship of Simmons, 6th Dist. Wood

No. WD–02–039, 2003-Ohio-5416, 2003 WL 22319415, ¶ 25, citing R.C. 1337.09 and

Testa v. Roberts, 44 Ohio App.3d 161, 164, 542 N.E.2d 654 (6th Dist.1988). (Other
Guernsey County, Case No. 14CA3                                                            7


citation omitted.) “The holder of a power of attorney has a fiduciary relationship with the

principal. Such a relationship is ‘one in which special confidence and trust is reposed in

the integrity and fidelity of another and there is a resulting position of superiority or

influence, acquired by virtue of this special trust.’ ” (Citations omitted.) Simmons at ¶ 25,

quoting Stone v. Davis, 66 Ohio St.2d 74, 78, 419 N.E.2d 1094 (1981). “In such a

relationship, the person who holds the power of attorney bears the burden of proof on

the issue of the fairness of transactions between himself and the principal.” Id., citing

Testa at 164, 542 N.E.2d 654.

       {¶22} In Simmons, the court of appeals also stated that:

              Where there is a confidential or fiduciary relationship between a

              donor and donee, a transfer of money or property from donor to

              donee is viewed with suspicion that the donor [sic] may have

              exercised undue influence on the donor. Even if a POA gives an

              express grant of authority to an attorney-in-fact to make gifts to

              third persons, including the attorney-in-fact, it does not remove all

              obligations owed to the principal. In such cases, a presumption of

              undue influence arises and the burden of going forward with

              evidence shifts to the donee to show that his conduct was free of

              undue influence or fraud and that the donor acted voluntarily and

              with a full understanding of his act and its consequences. The

              donee may rebut the presumption of undue influence by a

              preponderance of the evidence. (Citations omitted.)
Guernsey County, Case No. 14CA3                                                        8

             In re Guardianship of Simmons, 6th Dist. Wood No. WD–02–039,

             2003-Ohio-5416, 2003 WL 22319415, ¶ 26.

       {¶23} Before we reach the merits of the parties’ arguments, however, we must

address the Civ.R. 56 evidence in the record. Appellant responded to appellee’s motion

for summary judgment with an argument premised upon, essentially, “legal advice.”

The crux of appellant’s explanation as to why the purported transfer of the Property

occurred through use of the POA, quit-claim deed, and transfer-on-death deed, is based

upon the advice of Decatur’s counsel. The trial court found it could not weigh this

evidence in its decision because it is subject to attorney-client privilege which has not

been waived by Decatur’s executor, appellee.         We disagree with the trial court’s

exclusion of this evidence.

       {¶24} R.C. 2317.02(A)(1) states:

             The following persons shall not testify in certain respects:

             An attorney, concerning a communication made to the attorney by

             a client in that relation or concerning the attorney's advice to a

             client, except that the attorney may testify by express consent of

             the client or, if the client is deceased, by the express consent of the

             surviving spouse or the executor or administrator of the estate of

             the deceased client. However, if the client voluntarily reveals the

             substance of attorney-client communications in a nonprivileged

             context or is deemed by section 2151.421 of the Revised Code to

             have waived any testimonial privilege under this division, the

             attorney may be compelled to testify on the same subject.
Guernsey County, Case No. 14CA3                                                       9




             The testimonial privilege established under this division does

             not apply concerning a communication between a client who

             has since died and the deceased client's attorney if the

             communication is relevant to a dispute between parties who

             claim through that deceased client, regardless of whether the

             claims are by testate or intestate succession or by inter vivos

             transaction, and the dispute addresses the competency of the

             deceased client when the deceased client executed a

             document that is the basis of the dispute or whether the

             deceased client was a victim of fraud, undue influence, or

             duress when the deceased client executed a document that is

             the basis of the dispute. (Emphasis added.)

      {¶25} There is a dearth of case law on this statutory exception to the attorney-

client privilege. We note 1 Baldwin’s Oh. Prac. Merrick-Ripner Prob.L., Section 5.1,

Privileged communications—Statutory protection (2013) states in pertinent part:

             2006 House Bill 144, effective June 15, 2006, primarily waives the

             attorney-client privilege, R.C. 2317.02(A), as amended * * * in

             certain post-death probate litigation such as will and trust contests,

             a construction action concerning a will or trust document, a dispute

             concerning joint and survivorship property, a payable on death

             asset, a transfer on death deed or asset, the validity of a gift, a

             change in the beneficiary provisions of a pension or insurance
Guernsey County, Case No. 14CA3                                                      10


               policy, etc., all examples where the parties to the action claim an

               interest in the property through the same deceased person.

       {¶26} We conclude, therefore, the Keith affidavit is competent evidence in

appellant’s response to the motion for summary judgment. Because we find the Keith

affidavit should have been weighed in the trial court’s decision based upon R.C.

2317.02(A)(1), supra, we reverse the decision of the trial court granting summary

judgment for appellee with instructions to consider the Keith affidavit in reviewing

appellee’s motion for summary judgment.

       {¶27} Appellant’s first assignment of error is therefore sustained and her second

assignment of error is overruled as moot.

                                     CONCLUSION

       {¶28} Appellant’s first assignment of error is sustained, the judgment of the

Guernsey County Court of Common Pleas, Probate Division is reversed, and this matter

is remanded for further proceedings consistent with this opinion.

By: Delaney, J. and

Farmer, P.J.

Baldwin, J., concur.
