[Cite as Schaefer v. Bolog, 2018-Ohio-1337.]
                           STATE OF OHIO, MAHONING COUNTY

                                  IN THE COURT OF APPEALS

                                       SEVENTH DISTRICT


PATRICIA SCHAEFER                              )   CASE NO. 17 MA 0085
                                               )
        PLAINTIFF-APPELLEE                     )
                                               )
VS.                                            )   OPINION
                                               )
FRANK A. BOLOG                                 )
                                               )
        DEFENDANT-APPELLANT                    )

CHARACTER OF PROCEEDINGS:                          Civil Appeal from the Court of Common
                                                   Pleas, Probate Division, of Mahoning
                                                   County, Ohio
                                                   Case No. 2015 CI 00024

JUDGMENT:                                          Affirmed.

APPEARANCES:

For Plaintiff-Appellee:                            Atty. Thomas W. Connors
                                                   Black McCuskey Souers & Arbaugh
                                                   220 Market Avenue South
                                                   Suite 1000
                                                   Canton, Ohio 44702

For Defendant-Appellant:                           Atty. Craig T. Conley
                                                   604 Huntington Plaza
                                                   220 Market Avenue South
                                                   Canton, Ohio 44702


JUDGES:

Hon. Cheryl L. Waite
Hon. Gene Donofrio
Hon. Carol Ann Robb
                                                   Dated: March 29, 2018
[Cite as Schaefer v. Bolog, 2018-Ohio-1337.]
WAITE, J.


        {¶1}    Appellant, Frank A. Bolog, appeals the decision of the Mahoning

County Court of Common Pleas, Probate Division, in favor of Appellee, Patricia

Schaefer, following jury trial in a will contest action. On appeal, Appellant argues the

trial court erred when it denied his motion for summary judgment and his motion for

reconsideration after denial of summary judgment. Appellant contends the court also

erred in denying his motion for a directed verdict and in entering judgment for

Appellee after trial.

        {¶2}    The parties are brother and sister. Appellant proposed to probate a will

signed by his father, Decedent. Appellee contested the validity of this will. Appellee

based her challenge to the will on the testamentary capacity of Decedent, claiming he

was under the undue influence of Appellant. Appellant contends this matter never

should have gone to trial and that his motion for summary judgment and his

subsequent motion for reconsideration of its denial should have been granted

because Appellee failed to meet her burden to demonstrate that a genuine issue of

material fact existed. Additionally, Appellant contends the trial court should have

granted the motion for directed verdict he made after Appellee’s opening statement

at trial, because Appellee failed to argue that Decedent lacked testamentary

capacity.      Appellant also claims that the trial court erred in entering judgment

consistent with the jury verdict, but does not provide any argument regarding that

assignment. Appellant has failed to demonstrate the trial court erred in denying his

motion for summary judgment or the subsequent reconsideration motion. Further,

Appellant has failed to demonstrate the trial court erred in denying his motion for a
                                                                                    -2-

directed verdict or that the trial court erred in entering judgment based on the jury

verdict.    Accordingly, Appellant’s assignments of error are without merit and the

judgment of the trial court is affirmed.

                             Factual and Procedural History

         {¶3}   Frank K. Bolog, (“Decedent”) was married to Betty Bolog (“Betty”). Both

were the parents of Appellant and Appellee.        Decedent ran a bus transportation

business for many years. The business was turned over to Appellant. The family

home was transferred to Appellee. Decedent and Betty had executed a will in 1954

which was still valid in 2013 when Decedent, accompanied by Appellant, visited the

family attorney, Stephen Stone. Decedent asked that the will be rewritten to remove

Appellee as a beneficiary, allegedly because she was trying to take over the

business.       Stone advised against such action and instead recommended that

Decedent open a bank account and name Appellant as the beneficiary payable on

death.     Rather than take that advice, on September 10, 2013 Decedent, again

accompanied by Appellant, visited an attorney who handled the family business,

Dennis Clunk.       Decedent made the same request to remove Appellee as a

beneficiary under the will. Clunk advised that Decedent “go to lunch” and think about

it before executing the will.    Decedent returned that day, again accompanied by

Appellant, and executed the will as changed.

         {¶4}   Decedent and Betty were living with Appellee and she had been their

primary caretaker for several years. Guardianship proceedings for Decedent and

Betty were filed by Appellee in the Stark County Court of Common Pleas, Probate
                                                                                  -3-

Division, the parties’ county of residence.     (Stark County Case No. 219089).

Decedent had been evaluated for dementia on August 8, 2013, by Dr. Suzanne

Beason-Hazen. He was found to have mild dementia and was determined to be

incapable of managing his finances and property. Dr. Beason-Hazen’s report was

filed with Stark County Probate Court on October 11, 2013. Moreover, on October

18, 2013, just over a month from the date of the execution of the will at issue here,

Appellant also filed an application for guardianship for Decedent, representing that

Decedent was incompetent at that time. The record also contains evidence that on

November 13 and 14, 2013, Appellant accompanied Decedent to a number of banks

where several thousand dollars were transferred from an account in both parents’

names to an account owned by Decedent and Appellant. At around the same time

Decedent also executed a power of attorney in favor of Appellant. A guardian for

Decedent was named by the Stark County Probate Court. The guardian was able to

recover approximately half of the withdrawn funds.        On November 18, 2013,

Appellant brought Decedent in for an evaluation by Dr. Mark Hostetler at the behest

of Attorney Clunk.    Dr. Hostetler concluded that at the time, Decedent was

experiencing mild dementia, but disagreed with Dr. Beason-Hazen’s evaluation

regarding Decedent’s ability to manage his finances.

      {¶5}   Shortly afterward, Decedent moved out of Appellee’s home and into

Copeland Oaks Assisted Living. Betty continued to reside with Appellee. Decedent

was evaluated at Copeland Oaks on February 3, 2014 by Dr. Mark Shivers, who

concluded that Decedent’s dementia was mild and that he was competent to make
                                                                                  -4-

his own decisions and decisions on behalf of his spouse. However, on February 4,

2014, the Stark County Probate Court issued a judgment entry determining that

Decedent was incompetent.

      {¶6}   A short time later Betty died. A guardian ad litem report was submitted

in the Stark County matter on June 5, 2014. The guardian concluded that Decedent

was in full possession of his mental capacities but that the issue of undue influence

should be investigated or concluded as quickly as possible.       Decedent was re-

evaluated on July 24, 2014 by Dr. Robert DeVies. Dr. DeVies concurred with Dr.

Beason-Hazen’s prior evaluation that Decedent was incapable of managing his

personal business.

      {¶7}   Despite conflicting medical evaluations and Appellant’s own motion

seeking guardianship of Decedent, Appellant filed a motion to terminate guardianship

in the Stark County Probate Court on October 16, 2014. Decedent was evaluated

again on March 3, 2015, by Dr. Jay Berke, who concluded that Decedent was

suffering from moderately severe dementia.

      {¶8}   Decedent passed away on May 29, 2015.           The disputed will was

admitted to the Mahoning County Court of Common Pleas, Probate Division, on June

1, 2015. Appellee filed a complaint on June 17, 2015 alleging both that Decedent

lacked testamentary capacity to execute the 2013 will and that Appellant exerted

undue influence over him. An answer was filed on June 24, 2015. Appellee sought

leave and filed an amended complaint on July 13, 2016, naming Appellant both

individually and in his capacity as executor of the 2013 will. An answer was filed on
                                                                                       -5-

July 18, 2016. Appellant filed a motion for summary judgment on July 21, 2016 and

a supplemental memorandum and motion for leave to file a motion for summary

judgment was filed on July 25, 2016. In his summary judgment motion Appellant

contended that the Stark County Probate Court found Decedent incompetent but did

not provide a reason. Thus, Appellee’s assertion in her complaint that Decedent was

incompetent by reason of dementia was not supported on summary judgment.

Appellant also argued that the Mahoning County Probate Court, in an earlier entry

denying a motion filed by Appellee seeking to transfer the matter from Mahoning to

Stark County, held that Decedent was competent to form an intent to establish a new

domicile. Therefore, Appellant asserted that the probate court had already ruled on

Decedent’s competency. Appellee opposed Appellant’s request to file a motion for

summary judgment, alleging only that it was untimely.

       {¶9}   In a judgment entry dated August 24, 2016, the trial court determined

that the summary judgment motion was timely filed, but denied the motion, holding

that Appellant failed to demonstrate that no genuine issues of material fact remained

for trial. The court stated that its earlier ruling, that Decedent had the ability to form

an intent to establish a new domicile, was based on a different standard than the

standard required to show Decedent lacked testamentary capacity. The court also

held that questions of fact remained regarding whether Appellant exerted any undue

influence on Decedent.

       {¶10} Appellant filed a motion for partial reconsideration of the denial of

summary judgment on August 29, 2016. In it, he argued the same claims he posited
                                                                                      -6-

in the underlying summary judgment motion. Appellee filed a motion in opposition,

simply alleging that because Appellant failed to meet his initial burden in summary

judgment to prove that no question of fact remained to try, she had no reciprocal

evidentiary burden.       The trial court denied the motion for reconsideration on

September 13, 2016 and set the matter for a jury trial. After the conclusion of the jury

trial, on April 5, 2017 the trial court held the proposed will dated September 10, 2013,

did not constitute the last will and testament of Decedent. Appellant filed this timely

appeal and raises four assignments of error.

                             ASSIGNMENT OF ERROR NO. 1

       THE TRIAL COURT ERRED IN GRANTING JUDGMENT TO

       APPELLEE ON HER WILL CONTEST ACTION.

       {¶11} Appellant provides no argument under the first assignment of error.

Instead, he refers to it as an “omnibus” assignment of error that is dependent on the

other three assignments. Pursuant to the appellate rules, as Appellant has failed to

specifically argue this assignment of error or direct our attention to any portion of the

record relative to this assignment, it will not be addressed by this Court. App.R.

16(A)(7).

       {¶12} Turning to those assignments which are supported by argument,

assignments of error three and four regarding summary judgment will be addressed

first for purposes of clarity.

                             ASSIGNMENT OF ERROR NO. 3
                                                                                   -7-

      THE TRIAL COURT, AS A MATTER OF LAW, ERRED IN DENYING

      APPELLANT'S UNOPPOSED MOTION FOR SUMMARY JUDGMENT.

                         ASSIGNMENT OF ERROR NO. 4

      THE TRIAL COURT, AS A MATTER OF LAW, ERRED IN DENYING

      APPELLANT'S MOTION FOR RECONSIDERATION OF ITS DENIAL

      OF HIS UNOPPOSED MOTION FOR SUMMARY JUDGMENT.

      {¶13} Appellant contends the trial court erred in denying his motion for

summary judgment and his motion seeking reconsideration of this denial, claiming

that, as a matter of law, there were no genuine issues of material fact left for trial

concerning an essential element of Appellee’s case.

      {¶14} An appellate court conducts a de novo review of a trial court’s decision

to grant summary judgment, using the same standards as the trial court set forth in

Civ.R. 56(C). Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241

(1996). Before summary judgment can be granted, the trial court must determine

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, (3) it appears from the

evidence that reasonable minds can come to but one conclusion, and viewing the

evidence most favorably in favor of the party against whom the motion for summary

judgment is made, the conclusion is adverse to that party. Temple v. Wean United,

Inc., 50 Ohio St.2d 317, 327, 364 N.E.2d 267 (1977). Whether a fact is “material”

depends on the substantive law of the claim being litigated. Hoyt, Inc. v. Gordon &

Assoc., Inc., 104 Ohio App.3d 598, 603, 662 N.E.2d 1088 (8th Dist.1995).
                                                                                    -8-

      {¶15} “[T]he moving party bears the initial responsibility of informing the trial

court of the basis for the motion, and identifying those portions of the record which

demonstrate the absence of a genuine issue of fact on a material element of the

nonmoving party’s claim.” (Emphasis deleted.) Dresher v. Burt, 75 Ohio St.3d 280,

296, 662 N.E.2d 264 (1996). If the moving party carries its burden, the nonmoving

party has a reciprocal burden of setting forth specific facts showing that there is a

genuine issue for trial. Id. at 293. In other words, when presented with a properly

supported motion for summary judgment, the nonmoving party must produce some

evidence to suggest that a reasonable factfinder could rule in that party’s favor.

Brewer v. Cleveland Bd. of Edn., 122 Ohio App.3d 378, 386, 701 N.E.2d 1023 (8th

Dist.1997).

      {¶16} The evidentiary materials to support a motion for summary judgment

are listed in Civ.R. 56(C) and include the pleadings, depositions, answers to

interrogatories, written admissions, affidavits, transcripts of evidence, and written

stipulations of fact that have been filed in the case. In resolving the motion, a court

views the evidence in a light most favorable to the nonmoving party. Temple, 50

Ohio St.2d at 327.

      {¶17} Appellant claims that his motion contained unrefuted evidence in the

form of the sworn depositions of Attorney Clunk, who drafted the disputed will, and

Appellee. Clunk testified that he believed Decedent was competent when he came

to Clunk’s office seeking to draft a new will. Appellant also relies on Appellee’s

deposition testimony, where she stated that she had no personal knowledge
                                                                                      -9-

Appellant exerted undue influence on Decedent, but noticed manipulation of

Decedent by Appellant. While Appellant discussed the Stark County probate finding

of incompetency, he highlighted that the trial court never gave a reason for its finding.

Appellant cited to his own motion to terminate Decedent’s guardianship, although it

was never adjudicated due to Decedent’s death. Finally, Appellant referenced the

findings of two separate physicians (Dr. Shivers and Dr. Hostettler) who found

Decedent to be competent during the pendency of the guardianship proceeding.

Appellant claims that Appellee presented no evidence at summary judgment

contradicting this testimony and presented no additional evidence demonstrating

Decedent lacked testamentary capacity.

       {¶18} In the instant matter, Appellant’s initial summary judgment motion was

not opposed by Appellee. Once it was denied, Appellee’s response to Appellant’s

reconsideration motion was that the record as provided by Appellant himself showed

that genuine issues of material fact existed because two physicians had found

Decedent incompetent, suffering from moderately severe dementia, and Stark

County had ordered a guardianship for Decedent.             Appellee argued that, as

Appellant had not met his burden to demonstrate that there was no genuine issue of

material fact, Appellee was not required to further respond to the motion.

       {¶19} Summary judgment may be appropriate when the nonmoving party

does not produce evidence on any issue for which that party bears the burden of

production at trial. Abram v. Greater Cleveland Regional Transit Auth., 8th Dist. No.

80127, 2002-Ohio-2622 at ¶ 43. However, even when a summary judgment motion
                                                                                 -10-

is unopposed, the motion and supporting evidence must show that no material fact in

the case is in dispute before the court can grant the motion. Charles Gruenspan Co.

v. Thompson, 8th Dist. No. 80748, 2003-Ohio-3641. Therefore, the only relevant

argument under this assignment is whether at the time the motion for summary

judgment was filed, no material fact remained outstanding and Appellant was entitled

by law to judgment.

       {¶20} Although Appellee failed to respond to Appellant’s motion for summary

judgment, Appellant himself included contradictory evidence within his summary

judgment motion. Appellant directed the trial court to the medical evaluations of both

Drs. Shivers and Hostettler, who both concluded Decedent possessed the

competency required to manage his own affairs. However, Appellant also referred to

the expert evaluation and findings of Dr. Beason-Hazen filed in the Stark County

Probate Court.     Dr. Beason-Hazen concluded that Decedent was not capable of

managing his finances properly. Based on this expert opinion, the Stark County

Probate Court issued an entry dated February 4, 2014, finding Decedent to be

incompetent.     Both of these evidentiary items contradict the assertions made by

Appellant in his own motion, demonstrating that there were genuine issues of

material fact precluding summary judgment. Based on this, the trial court did not err

in denying Appellant’s motion for summary judgment and the later request for

reconsideration of that denial.

       {¶21} Additionally, we must note that denial of a motion for summary

judgment generally cannot be reversed on appeal if the matter has gone to trial on
                                                                                  -11-

the identical factual issues raised in the summary judgment motion. Continental Ins.

Co., v. Whittington, 71 Ohio St.3d 150, 156, 642 N.E.2d 615 (1994).          This rule

prevents the fundamental unfairness inherent in overturning a fully litigated jury

verdict in favor of a judgment rendered on an abbreviated presentation of evidence.

Id.

       {¶22} The Continental case applies unless denial of summary judgment must

be reversed on the application of law, even if the case went to trial and a verdict was

rendered.    Continental at 158; The Promotion Co., Inc./Special Events Div. v.

Sweeney, 150 Ohio App.3d 471, 2002-Ohio-6711, 782 N.E.2d 117, ¶ 15.

Additionally, an interlocutory denial of summary judgment may be reviewed and

reversed on appeal if the issues involved at the summary judgment stage were never

actually litigated at the subsequent trial. Continental at 159. Therefore, we review

this record not to second-guess the jury’s decisions on factual issues, but to

determine whether either of the two Continental exceptions to the general rule that

failure to grant summary judgment is harmless even in an appropriate case when the

matter is eventually tried.

       {¶23} Appellee raises two main arguments opposing Appellant’s summary

judgment argument: (1) that any error in denying summary judgment by the trial

court is moot because trial on the merits was held on the issues; and (2) Appellant

failed to file a trial transcript of the proceedings necessary to make a determination

whether the trial court’s ruling was proper.
                                                                                    -12-

       {¶24} We note that Appellant filed a partial transcript containing only

Appellee’s opening statement.      Appellant claims that a full transcript of the trial

proceedings is not necessary here because none of Appellant’s assignments of error

rely on the transcript.   Appellant also contends because the denial of summary

judgment constituted an error of law, pursuant to Continental and Sweeney, supra,

the denial of summary judgment is reviewable and reversible.

       {¶25} Appellant’s motion for summary judgment filed with the trial court was

based on five pieces of evidence: (1) the earlier determination of incompetency by

the Stark County Probate Court which failed to state the reason for that finding; (2)

medical evaluations contradicting the expert evaluation submitted to the Stark County

Probate Court concluding that Decedent was incompetent; (3) the deposition of

Attorney Clunk which indicated that he believed Decedent to be competent at the

time Decedent executed the will in Clunk’s office; (4) Appellee’s deposition testimony

that she had no personal knowledge of undue influence exerted on Decedent by

Appellant; and (5) the trial court’s prior ruling that in early 2014 Decedent was

competent enough to form an intent to establish a new domicile.                Appellant

characterizes this probate court decision as an adjudication of Decedent’s capacity,

and additionally posits that Appellee’s claim was barred by res judicata.

       {¶26} While Appellant contends no questions of fact existed and the summary

judgment motion was filed based purely on a matter of law, law which the court erred

in applying and which would enable our review even after jury trial, it is clear from the

face of Appellant’s motion (even though unopposed by Appellee) that genuine factual
                                                                                       -13-

issues existed regarding Decedent’s competency. Reference to competing medical

evaluations as well as to the finding of incompetency by the Stark County Probate

Court reveal that the facts were far from settled and that the matter did not involve

merely a legal determination. For this reason, the exception found in Continental that

the court erred in applying the law to the undisputed facts does not apply in the case

sub judice. Continental at 158. This matter clearly involved a factual dispute.

       {¶27} The second Continental exception is where the issues involved in

summary judgment were not actually litigated at trial. Id. at 159. Again, Appellant

has failed to file a trial transcript as part of the record in this appeal. This failure

precludes any evaluation of whether the factual issues presented in summary

judgment were actually litigated at trial. It is Appellant’s duty to provide all transcripts

necessary for a full review of the issues presented on appeal.

       The duty to provide a transcript for appellate review falls upon the

       appellant.   This is necessarily so because an appellant bears the

       burden of showing error by reference to matters in the record. See

       State v. Skaggs (1978), 53 Ohio St.2d 162. This principle is recognized

       in App.R. 9(B), which provides, in part, that “* * * the appellant shall in

       writing order from the reporter a complete transcript or a transcript of

       such parts of the proceedings not already on file as he deems

       necessary for inclusion in the record * * *.”        When portions of the

       transcript necessary for resolution of assigned errors are omitted from

       the record, the reviewing court has nothing to pass upon and thus, as to
                                                                                    -14-

       those assigned errors, the court has no choice but to presume the

       validity of the lower court’s proceedings, and affirm.

Knapp v. Edwards Laboratories, 61 Ohio St.2d 197, 199, 400 N.E.2d 384 (1980).

       {¶28} Without a transcript of the jury trial, we must presume the regularity of

the proceedings below, including the presumption that the factual issues involved in

summary judgment were fairly and adequately addressed at trial.             The record

contains nothing to indicate otherwise. Hence, as in Continental, any possible error

resulting from the denial of Appellant’s motion for summary judgment must be viewed

as harmless in light of the subsequent jury trial adjudicating the same factual issues.

       {¶29} It appears from the record and from a review of Appellant’s motion for

summary judgment that there were factual disputes concerning Decedent’s

competency. When there are genuine issues of material fact in dispute, summary

judgment is not appropriate. The trial court was correct in overruling Appellant’s

motion for summary judgment.

       {¶30} Based on the existence of disputed factual issues and the presumption

that those factual issues were addressed at trial, Appellant’s third and fourth

assignments of error are without merit and are overruled.

                          ASSIGNMENT OF ERROR NO. 2

       THE TRIAL COURT, AS A MATTER OF LAW, ERRED IN DENYING

       APPELLANT'S MOTION FOR A DIRECTED VERDICT FOLLOWING

       APPELLEE'S OPENING STATEMENT.
                                                                                  -15-

       {¶31} Turning to his second assignment of error, Appellant contends the trial

court erred in denying his motion for directed verdict proffered at the end of

Appellee’s opening statement. In support, Appellant did submit a partial transcript of

Appellee’s opening statement and argues that there was no mention of the term

“testamentary capacity” and no reference to Decedent’s lack of testamentary capacity

on the day the 2013 will was executed.

       {¶32} “A trial court should exercise great caution in sustaining a motion for a

directed verdict on the opening statement of counsel.” Brinkmoeller v. Wilson, 41

Ohio St.2d 223, 325 N.E.2d 233 (1975), syllabus. A trial court may grant a motion for

a directed verdict made at the end of a party’s opening statement only when the

opening statement shows that the party will be unable to sustain its cause of action at

trial. Parrish v. Jones, 138 Ohio St.3d 23, 2013-Ohio-5224, 3 N.E.3d 155, paragraph

three of the syllabus.

       {¶33} Once a jury has been convened and trial has started, a party may file a

motion for a directed verdict. Civ.R. 50 governs a directed verdict:

       (1) When made. A motion for a directed verdict may be made on the

       opening statement of the opponent, at the close of the opponent's

       evidence or at the close of all the evidence.


       (2) When not granted. A party who moves for a directed verdict at the

       close of the evidence offered by an opponent may offer evidence in the

       event that the motion is not granted, without having reserved the right

       so to do and to the same extent as if the motion had not been made. A
                                                                                    -16-

      motion for a directed verdict which is not granted is not a waiver of trial

      by jury even though all parties to the action have moved for directed

      verdicts.


      (3) Grounds. A motion for a directed verdict shall state the specific

      grounds therefor.


      (4) When granted on the evidence. When a motion for a directed

      verdict has been properly made, and the trial court, after construing the

      evidence most strongly in favor of the party against whom the motion is

      directed, finds that upon any determinative issue reasonable minds

      could come to but one conclusion upon the evidence submitted and that

      conclusion is adverse to such party, the court shall sustain the motion

      and direct a verdict for the moving party as to that issue.


      (5) Jury assent unnecessary. The order of the court granting a motion

      for a directed verdict is effective without any assent of the jury.

      {¶34} Hence, a motion for a directed verdict can be made after an opponent’s

opening statement, at the close of opponent’s evidence, and at the close of all of the

evidence. Civ.R. 50(A)(1). When ruling on a motion for a directed verdict made after

an opponent’s opening statement, while the trial court is not required to consider the

allegations contained within the pleadings, the court is permitted to consider them.

Parrish at ¶ 23-24. The trial court must also liberally construe the opening statement

in favor of the party against whom the motion is made. Brinkmoeller, syllabus.
                                                                                      -17-

       {¶35} A motion for directed verdict presents a question of law, rather than

fact. Goodyear Tire & Rubber Co. v. Aetna Cas. & Sur. Co., 95 Ohio St.3d 512,

2002-Ohio-2842, 769 N.E.2d 835, ¶ 4. On a question of law, we apply a de novo

standard of review on appeal. Id.

       {¶36} It is axiomatic that opening statements are not evidence and serve

merely to present a preview of the party’s claims and to assist the jury in following the

evidence as it will be presented later in the trial. Parrish at ¶ 29. Moreover, an

opening statement need not discuss every element of a claim. Id. at ¶ 31. The

Supreme Court of Ohio has stated that only when the opening statement

demonstrates that the party is completely unable to sustain a cause of action should

the court take the matter away from the jury and grant the motion for a directed

verdict. Id. at ¶ 32.

       {¶37} In the instant case, when Appellant moved for a directed verdict, he

argued at trial that the opening statement only referred to dementia and “that ain’t the

same as a lack of testamentary capacity.” (2/13/17 Tr., p. 21.) Appellant argued that

there was no supporting evidence proffered to prove a lack of testamentary capacity.

Appellant contends that Appellee was alleging a fraud claim and never spoke the

word “fraud” or established proximate cause between Appellant and fraud in the

opening statement.      Appellee’s counsel argued that he chose not to use legal

terminology in his opening statement to the jury but that he referenced elements that

needed to be proven without going into exhaustive detail, reserving that for trial.
                                                                                       -18-

       {¶38} A review of the opening statement reveals that Appellee’s counsel

provided a chronological recitation of the facts surrounding Decedent’s living situation

and his relationship with his children, beginning with the execution of the initial will, to

the conduct of Decedent and Appellant at the time the 2013 will was executed.

Appellee spoke to the jury about the transfer of the business from father to son, the

subsequent financial difficulties of the business, and the evidence of large monetary

withdrawals from Decedent’s accounts that he could not account for. The opening

statement also discussed constant requests for money from Decedent by Appellant.

Appellee’s counsel spoke about the medical evaluations which had determined

Decedent was not competent to make financial decisions, and doctors’ concerns

about Decedent’s management of money and the possibility that someone

(Appellant) might be trying to influence Decedent. (2/13/17 Tr., p. 11.) Appellee’s

counsel also referred to the filing of a request for guardianship of Decedent signed by

Appellant around the time the 2013 will was executed, as well as evidence that

Appellant took Decedent to several banks to make withdrawals during that same

time. (2/13/17 Tr., p. 13.) Thus, during the opening statement, Appellee’s counsel

introduced and outlined the issues of testamentary capacity and undue influence.

       {¶39} After Appellant moved for a directed verdict, the trial court recessed to

research the matter.     The court ultimately concluded that the complaint and the

opening statement, when construed in favor of Appellee, did not warrant a directed

verdict. Appellant complains that in opposing the motion, Appellee cited to a case

that mistakenly caused the court to believe that it was mandated to take into
                                                                                  -19-

consideration the pleadings in the matter, instead of merely permitted to consider the

pleadings in the discretion of the court. The record does not support any error or

confusion on the part of the judge in this regard.       Again, while the court is not

compelled to take into consideration the allegations contained in the pleadings, it

may do so if it chooses.

       {¶40} Considering the standard under which a trial court may grant a directed

verdict made after a party’s opening statement and the record of the opening

statement and the pleadings, when these are liberally construed in favor of Appellee,

the trial court correctly denied Appellant’s motion for a directed verdict. The trial

court’s decision in this regard is affirmed.

       {¶41} Based on the foregoing, Appellant’s assignments of error are without

merit and the judgment of the trial court is affirmed.


Donofrio, J., concurs.

Robb, P.J., concurs.
