[Cite as Schiavoni v. Roy, 2012-Ohio-4435.]


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

HALLIE SCHIAVONI                                      C.A. No.     11CA0108-M

        Appellee

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
BRIAN A. ROY, et al.                                  COURT OF COMMON PLEAS
                                                      COUNTY OF MEDINA, OHIO
        Appellant                                     CASE No.   2010 02 CA 00006

                                 DECISION AND JOURNAL ENTRY

Dated: September 28, 2012



        DICKINSON, Judge.

                                              INTRODUCTION

        {¶1}    Hallie Schiavoni sued her brother, Brian Roy, for conversion, breach of fiduciary

duty, undue influence, unjust enrichment, and fraud, alleging that he had misappropriated assets

that belonged to their mother, Jean Roy. Mr. Roy, who Ms. Schiavoni also sued in his capacity

as executor of Ms. Roy’s will, counterclaimed, alleging that Ms. Schiavoni had converted some

of their mother’s bonds and failed to repay loans to her. Following a trial to the bench, the

probate court found in favor of Ms. Schiavoni and ordered Mr. Roy to distribute the misused

assets to Ms. Schiavoni or Ms. Roy’s estate. It also awarded Ms. Schiavoni prejudgment interest

and attorney’s fees.      Mr. Roy has appealed, arguing that the probate court did not have

jurisdiction over Ms. Roy’s annuities, that the court’s findings were not supported by the

evidence and were against the manifest weight of the evidence, and that the court incorrectly

awarded Ms. Schiavoni prejudgment interest and attorney fees. We affirm because the probate
                                                 2


court had jurisdiction over the annuities, its decision was supported by sufficient evidence and

was not against the manifest weight of the evidence, and it correctly awarded Ms. Schiavoni her

prejudgment interest and attorney fees.

                                          BACKGROUND

       {¶2}    After her husband died in 2000, Ms. Roy executed a will that appointed Mr. Roy

as her executor and Ms. Schiavoni as her successor executor. The will also divided her estate

equally between her two children. On the same day, she executed a durable power of attorney

that named Mr. Roy as her attorney-in-fact. The will and power-of-attorney documents were

prepared by Marcia Bullard, a lawyer who once worked with Mr. Roy’s wife.

       {¶3}    Over the course of the next few years, Ms. Roy developed dementia.               She

subsequently moved into an assisted-living facility that was near Mr. Roy’s house. Mr. Roy and

his wife visited Ms. Roy regularly, and Mr. Roy began handling her financial affairs. Ms.

Schiavoni testified that she also visited her mother regularly at the facility when she was in town,

but said that she spent almost half the year living out-of-state. Ms. Roy died in 2008.

                              JURISDICTION OVER ANNUITIES

       {¶4}    Mr. Roy’s first assignment of error is that the probate court lacked jurisdiction

over two annuities that Ms. Roy had at the time of her death. One of the annuities was from the

Hartford Life and Annuity Insurance Company. Ms. Roy purchased it in 2000 and initially

named her children as co-beneficiaries. In 2007, however, she designated Mr. Roy as the sole

beneficiary. The other annuity was from the Standard Life Insurance Company of Indiana. Mr.

Roy bought it for Ms. Roy, allegedly at her direction, in February 2006. Mr. Roy was the sole

beneficiary.
                                                    3


        {¶5}    In its decision, the probate court determined that Ms. Roy lacked the mental

capacity to change the beneficiary of the Hartford annuity. It also determined that the change-of-

beneficiary designation was presumptively the product of undue influence and that Mr. Roy had

failed to rebut the presumption by credible evidence. Regarding the Standard Life annuity, it

determined that Mr. Roy had failed to rebut the presumption that the purchase was not the result

of undue influence. It ordered Mr. Roy to pay half of the Hartford-annuity death benefit to Ms.

Schiavoni and to pay the Standard-Life-annuity death benefit to Ms. Roy’s estate.

        {¶6}    Mr. Roy has argued that the probate court did not have jurisdiction to determine

any issues regarding the annuities because they were not probate assets.            Under Section

2101.24(A)(1)(c) of the Ohio Revised Code, “the probate court has exclusive jurisdiction . . . [t]o

direct and control the conduct and settle the accounts of executors and administrators and order

the distribution of estates.” That provision vests the probate court with “full power to determine

what property is lawfully included in an inventory as assets.” In re Estate of Boone, 190 Ohio

App. 3d 799, 2010-Ohio-6269, ¶ 36 (7th Dist.). The probate court also “has jurisdiction to hear

and determine actions involving the misuse of a power of attorney.” Estate v. Niemi v. Niemi,

11th Dist. No. 2008-T-0082, 2009-Ohio-2090, ¶ 36 (citing R.C. 2101.24(B)(1)(b)); see also

Section 2101.24(A)(1)(m) (providing that “the probate court has exclusive jurisdiction . . . [t]o

direct and control the conduct of fiduciaries . . . .”).

        {¶7}    Because Ms. Roy obtained the Standard Life annuity through Mr. Roy’s exercise

of the power of attorney, the probate court had jurisdiction to determine whether obtaining the

annuity was a proper exercise of his authority. R.C. 2101.24(B)(1)(b). See Levy v. Thompson,

2d Dist. No. 20641, 2006-Ohio-5312, ¶ 20 (concluding that sister’s alleged misuse of power of

attorney provided probate court with jurisdiction to determine whether designation on annuity
                                                  4


should be voided). Similarly, because Mr. Roy completed most of the Hartford annuity change-

of-beneficiary form and he was with Ms. Roy when she signed it, the probate court had

jurisdiction to determine whether he exercised undue influence over her regarding who she

named as her beneficiary. See R.C. 2101.24(B)(1)(b); In re Scott, 111 Ohio App. 3d 273, 276

(6th Dist. 1996) (“The holder of a power of attorney has a fiduciary relationship with his or her

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

integrity and fidelity of another . . . by virtue of this special trust.’”) (quoting Stone v. Davis, 66

Ohio St. 2d 74, 78 (1981)). Accordingly, we conclude that the probate court had jurisdiction to

determine whether the purchase of the Standard Life annuity and the change of beneficiary of the

Hartford annuity were valid.

       {¶8}    Having determined that the annuity-beneficiary designations were not valid, the

probate court had authority to decide how the annuities’ death benefits should be distributed.

R.C. 2101.24(C) (“The probate court has plenary power at law and in equity to dispose fully of

any matter that is properly before the court, unless the power is expressly otherwise limited or

denied by a section of the Revised Code.”). It, therefore, had authority to award Ms. Schiavoni

half of the Hartford annuity and to order Mr. Roy to pay the amount he had received from the

Standard Life annuity to Ms. Roy’s estate. Mr. Roy’s first assignment of error is overruled.

                                      LACK OF CAPACITY

       {¶9}    Mr. Roy’s second assignment of error is that the probate court’s lack-of-mental-

capacity finding was not supported by sufficient evidence and was against the manifest weight of

the evidence. The probate court found that, after July 2006, Ms. Roy “was incompetent and

incapable of managing her affairs and legally unable to give her property to anyone or any
                                                 5


institution.” “[She] lacked the mental acuity to comprehend the nature of the transactions, their

effect on her estate and the manifestly unequal treatment these transactions had for her children.”

       {¶10} Regarding civil cases, the Ohio Supreme Court has written that, “[if] applying a

sufficiency-of-the-evidence standard, a court of appeals should affirm a trial court [if] ‘the

evidence is legally sufficient to support the [judgment] as a matter of law.’” Bryan–Wollman v.

Domonko, 115 Ohio St. 3d 291, 2007-Ohio-4918, ¶ 3 (quoting State v. Thompkins, 78 Ohio St.

3d 380, 386 (1997)). When reviewing the manifest weight of the evidence in a civil case, this

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 such a manifest miscarriage of justice that the [judgment] must be reversed and

a new trial ordered.” Eastley v. Volkman, 132 Ohio St. 3d 328, 2012–Ohio–2179, ¶ 20 (quoting

Tewarson v. Simon, 141 Ohio App. 3d 103, 115 (9th Dist. 2001)).

       {¶11} “The test to be used to determine mental capacity is the ability of the principal to

understand the nature, scope, and extent of the business she is about to transact.” Cook v.

Reising, 181 Ohio App. 3d 546, 2009-Ohio-1131, ¶ 17 (9th Dist.). “The burden is upon the party

claiming incompetence to prove the matter by clear and convincing evidence.”              Modie v.

Andrews, 9th Dist. No. 19543, 2000 WL 1026682, *4 (July 26, 2000).

       {¶12} Dr. David Feldman, a psychiatrist whose focus is in geriatric psychiatry, testified

that he had reviewed Ms. Roy’s medical records to develop an opinion on whether she had the

capacity to manage her affairs. He noted that, although the records he received only went back

to 2000, they indicated that she had pre-existing depression and anxiety problems. The records

showed that she then developed an Alzheimer’s-type dementia syndrome as well as behavior

problems, agitation, and paranoia, all of which contributed to a “substantial” cognitive decline
                                                6


between 2000 and 2008. In 2000, her cognitive decline was mild, with only some short-term

memory problems. By the time Ms. Roy fractured her shoulder in 2003, however, she “was very

confused,” which was partially caused by her progressive dementia.

           {¶13} Dr. Feldman testified that, after 2003, Ms. Roy continued to have a “pretty

ongoing level of cognitive decline,” noting that the medical personnel who saw her generally

documented her short-term memory impairment and orientation problems. In 2005, for instance,

she told nurses that she thought someone was trying to murder her and, in 2006, she scored 18

out of 30 on a Mini-Mental Status Examination. Dr. Feldman explained that a score below 24 is

considered “demented” and one under 20 is “in the moderate range of dementia.” He also noted

that when a psychologist saw her on a regular basis in 2006, Ms. Roy was consistently

disoriented regarding time. He opined that between 2003 and 2006 she “was probably in the

moderate cognitively impaired range.” In addition, he noted that her anxiety and depression

would have also impaired her mental capacity. Dr. Feldman concluded that Ms. Roy lacked the

“capacity to make high-level or complex financial decisions . . . in the last three years of her

life[.]”

           {¶14} Dr. Canice Barnett, a psychologist who attempted to treat Ms. Roy in 2006,

testified about her sessions with Ms. Roy. According to Dr. Barnett, Ms. Roy had generalized

anxiety disorder and dementia with depression. She explained that Ms. Roy was very anxious

and worried and sometimes refused to allow Dr. Barnett into her room, requiring Dr. Barnett to

conduct their sessions from the hallway. Dr. Barnett said that Ms. Roy sometimes thought that

people were stealing from her or that things had gone missing, even though the items were still in

her room. Dr. Barnett also said that Ms. Roy’s memory was moderately impaired, that she

would talk about the same thing again and again, that she would move from one topic to another
                                                 7


even if there was only a loose association, and that she was very reluctant to leave her room. On

one occasion, Dr. Barnett observed Ms. Roy become obsessed with a group of flies outside,

concerned that they were going to enter her apartment and land in her hair, even though the

window was closed. On another occasion, Ms. Roy was not dressed when Dr. Barnett arrived,

even though it was around the time for one of her favorite activities at the center. Dr. Barnett

said that she stopped attempting to treat Ms. Roy after 13 sessions because Ms. Roy would get

upset by the fact that she could not remember why Dr. Barnett was there and the sessions were

not having any therapeutic effect.

       {¶15} The probate court found that Ms. Roy suffered from anxiety and depression

during her lifetime and that her conditions became more pronounced after the death of her

husband in 2000. By 2003, she was diagnosed with Alzheimer’s disease. It found that, when

Ms. Roy entered assisted-living, she had had episodes of acute paranoia and a general decline in

her mental ability. Relying on Dr. Feldman’s and Dr. Barnett’s testimony, it found that, after

July 2006, she “was incompetent and incapable of managing her affairs and legally unable to

give her property to anyone or any institution.” It also found that she “lacked the mental acuity

to comprehend the nature of the transactions, their effect on her estate and the manifestly unequal

treatment these transactions had for her children.”

       {¶16} Mr. Roy has argued that the probate court incorrectly gave weight to Dr.

Feldman’s opinion because Dr. Feldman never met Ms. Roy. He has noted that Dr. Barnett

testified that, despite Ms. Roy’s difficulties, she would have been capable of making a decision

to change the beneficiary of a life insurance policy throughout the time that she attempted to treat

her. He has also noted that Dr. Kenneth Biros, a doctor whose practice is devoted entirely to

extended-care patients, testified that someone with only a mild cognitive impairment would not
                                                8


lack the ability to make decisions about the disposition of her assets. Dr. Biros also explained

that, even if someone has moderate or severe cognitive impairment, she could still have periods

of lucidity in which she could communicate her desires to others. Mr. Roy has also noted that

Ms. Roy’s lawyer, Ms. Bullard, testified that she did not observe any signs of impairment when

she reviewed a trust document with Ms. Roy in 2008. Mr. Roy has also noted that assessments

by the staff at Ms. Roy’s assisted living facility in 2007 and 2008 indicated that, although Ms.

Roy had periods of confusion, she was alert and oriented to self and family, understood others

and communicated well, and was still independent in dressing, bathing, mobility, vision,

transferring, and eating. Mr. Roy has further argued that there was no evidence that Ms. Roy

was impaired at the time she executed the documents at issue in this case.

       {¶17} The level of mental capacity that Ms. Roy needed to make decisions about her

finances depended on the nature of the transaction. Cook v. Reising, 181 Ohio App. 3d 546,

2009-Ohio-1131, ¶ 17 (9th Dist.). Regarding the annuities, Mr. Roy has argued that, even

though they could be considered a fairly complex financial instrument, the ultimate decision of

who received the death benefit was a fairly straight forward question, similar to whom should be

the beneficiary of one’s will. The Ohio Supreme Court has held that “[t]estamentary capacity

exists when the testator has sufficient mind and memory: First, to understand the nature of the

business in which he is engaged; second, to comprehend generally the nature and extent of his

property; third, to hold in his mind the names and identity of those who have natural claims upon

his bounty; fourth, to be able to appreciate his relation to the members of his family.” Niemes v.

Niemes, 97 Ohio St. 145, paragraph four of the syllabus (1917). Mr. Roy has also argued that the

various monetary gifts that Ms. Roy made to him did not require a high degree of mental

capacity.
                                                9


       {¶18} Ms. Schiavoni testified that, until Ms. Roy developed dementia, she had always

treated her son and daughter equally when it came to financial distributions. Her testimony is

supported by the beneficiary selections that Ms. Roy made before she developed dementia. Dr.

Barnett testified that, although Ms. Roy would often talk about her family, she usually only

talked about Mr. Roy and his wife. She said that Ms. Roy mentioned Ms. Schiavoni on only one

occasion, that it was “very minimal,” and that it was only to inform her that Ms. Roy would not

allow the doctor to talk to Ms. Schiavoni about their sessions. Regarding grandchildren, Dr.

Barnett said that Ms. Roy only ever mentioned Mr. Roy’s children and never mentioned Ms.

Schiavoni’s children.

       {¶19} Mr. Roy argued that Ms. Roy had legitimate reasons for treating him more

favorably than Ms. Schiavoni, alleging that Ms. Schiavoni obtained loans from Ms. Roy that she

did not repay, that she misappropriated some of Ms. Roy’s bonds and that, at one point, she

changed the mailing address for the Hartford annuity to her home address. The probate court,

however, found him not credible.

       {¶20} Upon review of the record, we conclude that Ms. Schiavoni presented sufficient

evidence from which the probate court could determine that there was clear and convincing

evidence that Ms. Schiavoni did not have a sufficient degree of mental capacity to change the

beneficiary of the Hartford annuity, authorize Mr. Roy to obtain the Standard Life annuity and

open a joint bank account with right of survivorship, or appreciate the quantity, size, and

frequency of monetary gifts that she was making to Mr. Roy.            The court’s conclusion is

supported by the testimony of Dr. Feldman and Dr. Barnett, their records, and the reports

generated by the assisted-living facility. We also conclude that the probate court did not lose its

way when it found that there was clear and convincing evidence that Ms. Roy failed to
                                                10


appreciate her relation to all of the members of her family at the time she changed the

beneficiary of the Hartford annuity, told Mr. Roy to obtain the Standard Life annuity, told Mr.

Roy to open the checking account, and made numerous monetary gifts to Mr. Roy and his

family. Mr. Roy’s second assignment of error is overruled.

                                      UNDUE INFLUENCE

       {¶21} Mr. Roy’s third assignment of error is that the probate court’s judgment regarding

who should receive the Hartford and Standard Life annuity death benefits was not supported by

sufficient evidence and was against the manifest weight of the evidence. In particular, he has

argued that the court incorrectly concluded that the beneficiary designations were the product of

undue influence and a breach of his fiduciary duty to Ms. Roy.

       {¶22} “The essential elements of undue influence are: (1) a susceptible testator, (2)

another’s opportunity to exert influence on the testator, (3) the fact of improper influence exerted

or attempted, and (4) a result showing the effect of such influence.” Kryder v. Kryder, 9th Dist.

25665, 2012-Ohio-2280, ¶ 30. “[If] a fiduciary or confidential relationship exists between the

donor and the donee,” however, “the transfer is regarded with suspicion that the donee may have

brought undue influence to bear upon the donor.” Modie v. Andrews, 9th Dist. No. 19543, 2000

WL 1026682, *4 (July 26, 2000). “In such a case, a presumption of undue influence arises, and

the donee bears the burden going forward and showing, by a preponderance of the evidence, that

the gift was free from undue influence.” Id. The probate court found that Mr. Roy, who was Ms.

Roy’s fiduciary, failed to rebut the presumption that he unduly influenced his mother.

       {¶23} Mr. Roy has argued that it was reasonable for his mother to give her assets to him

because he devoutly attended to her and she had a history of problems with Ms. Schiavoni. He

has argued that, in addition to not paying back loans and taking savings bonds from Ms. Roy,
                                                   11


Ms. Schiavoni did not visit Ms. Roy at the assisted-living facility, had a confrontation with her in

December 2006, and did not give her a Christmas present in 2006. He has also argued that Ms.

Schiavoni took things from Ms. Roy’s room at the facility. Regarding the Hartford annuity, Mr.

Roy has argued that, originally, he was the sole beneficiary of a joint annuity that his parents had

before his father died. When Ms. Roy converted it after her husband’s death, she named both of

her children as beneficiaries. Her later decision to name him as the sole beneficiary, therefore,

was just going back to the original designation.

       {¶24} As we have previously noted, the probate court did not find Mr. Roy’s testimony

about the unpaid loans and stolen bonds credible. Ms. Schiavoni testified that she never failed to

give her mother a Christmas present, which the court found credible. Mr. Roy’s claim that Ms.

Schiavoni did not visit her mother is inconsistent with his assertion that she had a fight with Ms.

Roy in December 2006 and stole things from Ms. Roy’s room. Regarding the history of the

Hartford annuity, Mr. Roy did not present any written evidence that the funds for the Hartford

annuity came from a prior annuity.

       {¶25} It is undisputed that Mr. Roy obtained the Standard Life annuity for Ms. Roy

using his authority as her attorney-in-fact and that he helped her complete the change of

beneficiary form for the Hartford annuity. Upon review of the record, we conclude that the

probate court’s decision that he failed to rebut the presumption of undue influence regarding

those transactions was supported by sufficient evidence and was not against the manifest weight

of the evidence. Mr. Roy’s third assignment of error is overruled.

                        MORTGAGE PAYMENTS AND CASH GIFTS

       {¶26} Mr. Roy’s fourth assignment of error is that the probate court’s judgment

regarding Ms. Roy’s cash gifts to Mr. Roy, including paying his mortgage, was not supported by
                                                12


sufficient evidence and was against the manifest weight of the evidence. As with the annuity-

beneficiary designations, the court found that the purported gifts were the product of undue

influence.

       {¶27} According to Mr. Roy, when he went through Ms. Roy’s mail with her, if there

were any checks that were payable to her, she would tell him that she wanted him to have the

money instead. He, therefore, would deposit the sum in their joint checking account then write a

check to his home mortgage company. Mr. Roy also said that, after his mother moved into the

assisted-living facility, he learned that she could qualify for additional Veterans benefits. To be

eligible for the program, she needed to dispose of some of her assets, and he did that by gifting

$24,000 to himself and his wife. Mr. Roy further said that Ms. Roy insisted on paying for his

gas when he took her on trips away from the facility and that she paid to have his car washed

because she enjoyed the experience of going through an automated car wash.

       {¶28} The probate court found that Mr. Roy failed to rebut the presumption that the gifts

he made to himself from Ms. Roy’s assets were not the product of undue influence. It found

that, although he may have originally meant to act as a dutiful son, over time he began

“pilfering” from his mother’s estate. It noted that the mortgage payments, car expenses, and

other cash gifts were not the only assets that Mr. Roy did not use for Ms. Roy’s benefit.

Specifically, it found that he had used his mother’s funds to make donations to his favorite

charities and that he had given hundreds of dollars of her money to a Lutheran ministry, even

though she was not Lutheran. He also purchased all of her dietary supplements at full price from

a company that he owned. The court further noted that there was a provision in Ms. Roy’s

power-of-attorney document that limited his ability to make gifts to himself to $5000 annually.
                                               13


       {¶29} In support of his argument, Mr. Roy has pointed out that Ms. Roy signed one of

the checks that he wrote to his mortgage company.         That was the only document that he

presented, however, to support his claim that the sums of money he received from Ms. Roy were

gifts. While the check was from 2005, a time before the time by which the court found that Ms.

Roy was incompetent, that fact does not conclusively establish that the payment was a gift, that

the other mortgage payments were gifts, or that any of the other financial benefits Mr. Roy

received were gifts. We conclude that the probate court’s conclusion that Mr. Roy failed to rebut

the presumption of undue influence was supported by sufficient evidence and was not against the

manifest weight of the evidence. Mr. Roy’s fourth assignment of error is overruled.

                                      ATTORNEY FEES

       {¶30} Mr. Roy’s fifth assignment of error is that the probate court incorrectly awarded

Ms. Schiavoni her attorney fees. He has argued that the court incorrectly ordered him to pay her

fees because it did not award punitive damages. He has also argued that the court incorrectly

authorized Ms. Roy’s estate to reimburse Ms. Schiavoni for her attorney fees.

       {¶31} “Ohio has long adhered to the ‘American rule’ with respect to recovery of

attorney fees: a prevailing party in a civil action may not recover attorney fees as a part of the

costs of litigation.” Wilborn v. Bank One Corp., 121 Ohio St. 3d 546, 2009–Ohio–306, ¶ 7

(quoting Nottingdale Homeowners’ Ass’n Inc. v. Darby, 33 Ohio St. 3d 32, 33 (1987)).

“However, there are exceptions to this rule. Attorney fees may be awarded when a statute or an

enforceable contract specifically provides for the losing party to pay the prevailing party’s

attorney fees . . . or when the prevailing party demonstrates bad faith on the part of the

unsuccessful litigant[.]” Id. They may also be awarded as an element of compensatory damages

if punitive damages are awarded. Zoppo v. Homestead Ins. Co., 71 Ohio St. 3d 552, 558 (1994).
                                               14


       {¶32} The probate court found that Mr. Roy should pay Ms. Schiavoni’s attorney fees

because he had acted in bad faith. Mr. Roy has not contested the court’s finding. Rather, he has

argued that, in Zappitelli v. Miller, 114 Ohio St. 3d 102, 2007-Ohio-3251, the Ohio Supreme

Court held that attorney fees may only be recovered as an element of compensatory damages if

punitive damages have been awarded. Id. ¶ 6. Zappitelli, however, did not involve an allegation

of bad faith. Moreover, since Zappitelli, the Ohio Supreme Court has continued to recognize that

attorney fees may be recovered in actions involving bad faith. State ex rel. Waiters v. Szabo, 129

Ohio St. 3d 122, 2011-Ohio-3088, ¶ 15; Wilborn v. Bank One Corp., 121 Ohio St. 3d 546, 2009–

Ohio–306, ¶ 7; Reagans v. MountainHigh Coachworks Inc., 117 Ohio St. 3d 22, 2008-Ohio-271,

¶ 36; State ex rel. Citizen Action for a Livable Montgomery v. Hamilton County Bd. of Elections,

115 Ohio St. 3d 437, 2007-Ohio-5379, ¶ 55. The Supreme Court has not held that an award of

punitive damages is a prerequisite to an award of attorney fees when the award is based on the

bad-faith conduct of the defendant.     Accordingly, we are not persuaded to reconsider our

precedent on this issue. E.g., Technical Constr. Specialties Inc. v. New Era Builders Inc., 9th

Dist. No. 25776, 2012-Ohio-1328, ¶ 26; Mauger v. Inner Circle Condo. Owners Ass’n, 9th Dist.

No. 10CA0046-M, 2011-Ohio-1533, ¶ 23; LEH Props. Inc. v. Pheasant Run Ass’n, 9th Dist. No.

10CA009780, 2011-Ohio-516, ¶ 22.

       {¶33} Regarding whether the court correctly authorized the estate to reimburse Ms.

Schiavoni for her attorney fees, Section 2113.36 of the Ohio Revised Code provides that, “[i]f an

attorney has been employed in the administration of the estate, reasonable attorney fees paid by

the executor or administrator shall be allowed as a part of the expenses of administration.” Ohio

courts have held that this language authorizes the probate court to order an estate to pay an

attorney employed by an heir or beneficiary of the estate if the attorney’s services benefited the
                                                15


estate. In re Keller, 65 Ohio App. 3d 650, 656 (8th Dist. 1989); see In re Estate of Brown, 83

Ohio App. 3d 540, 542 (12th Dist. 1992). Known as the “common fund theory” of recovery, it is

“based on ‘the equitable doctrine that where one has created, augmented, or preserved a fund he

may be compensated therefrom.’” In re Estate of Fugate, 86 Ohio App. 3d 293, 298 (1993);

Brown, 83 Ohio App. 3d at 542 (quoting In re Colosimo, 104 Ohio App. 342, 342-43 (2d Dist.

1957)). The test to determine whether the estate has benefited is whether all of the beneficiaries

of the estate, in that capacity, have become entitled to receive a greater sum than they would

have received without the lawyer’s services. Fugate, 86 Ohio App. 3d at 299. This Court has

applied the common fund doctrine in multiple cases. Nat’l City Bank NE v. Depew, 9th Dist.

Nos. 18372, 18436, 1997 WL 823968, *7 (Dec. 31, 1997); Pedler v. Pedler, 9th Dist. No. 9812,

1981 WL 3937, *1-2 (Apr. 15, 1981).

       {¶34} Mr. Roy has argued that the common fund doctrine does not apply to the facts of

this case because Ms. Schiavoni was primarily serving her own interests when she sued to

recover the assets he converted. In its judgment, the probate court ordered Mr. Roy to return

approximately $135,500 to the estate. Under the terms of Ms. Roy’s will, her estate was to be

divided between Mr. Roy and Ms. Schiavoni equally. Although Mr. Roy is the source of the

recovered assets, in his capacity as a beneficiary of Ms. Roy’s will, both he and Ms. Schiavoni

will receive more than they would have if Ms. Schiavoni had not brought this action. The court,

therefore, correctly determined that Ms. Schiavoni could recover her attorney fees from the

estate. Mr. Roy’s fifth assignment of error is overruled.

                                  PREJUDGMENT INTEREST

       {¶35} Mr. Roy’s sixth assignment of error is that the probate court incorrectly awarded

Ms. Schiavoni prejudgment interest. He has argued that her motion for prejudgment interest was
                                                16


untimely under Section 1343.03(C) of the Ohio Revised Code. Although there is no time limit in

the text of Section 1343.03(C), the Ohio Supreme Court has held that a motion for prejudgment

interest under that section “must be made to the trial court following the verdict or decision in

the case and in no event later than fourteen days beyond the entry of judgment.” Cotterman v.

Cleveland Elec. Illuminating Co., 34 Ohio St. 3d 48, paragraph one of the syllabus (1987). The

probate court initially announced its decision on April 13, 2011. Ms. Schiavoni did not move for

prejudgment interest until May 5, 2011.

       {¶36} Mr. Roy’s argument is without merit because the probate court’s initial decision

was not the court’s judgment. “A judgment is ‘the final determination of the rights of the parties

in action.’” Countrywide Home Loans Inc. v. Yankovich, 9th Dist. No. 24768, 2010-Ohio-4651,

¶ 3 (quoting Hoffman v. Knollman, 135 Ohio St. 170, 175 (1939)); GTE Automatic Elec. Inc. v.

ARC Indus. Inc., 47 Ohio St. 2d 146, 150 (1976). Although the court decided most of the issues

in this case in its April 13, 2011, journal entry, it failed to dispose of Ms. Schiavoni’s surcharge

and fraud claims.     The court did not dispose of those claims until October 31, 2011.

Accordingly, Ms. Schiavoni’s motion, which was filed in May 2011, was timely under

Cotterman. See Coon v. Technical Constr. Specialties Inc., 9th Dist. No. 24542, 2010-Ohio-417,

¶ 23 (concluding that a court may consider a motion for prejudgment interest that was filed

before judgment was entered). Mr. Roy’s sixth assignment of error is overruled.

                                          CONCLUSION

       {¶37} The probate court had jurisdiction to determine the validity of the change of

beneficiary designation for the Hartford annuity and whether Mr. Roy properly obtained the

Standard Life annuity. Its decision regarding whether Mr. Roy converted Ms. Roy’s assets is

supported by sufficient evidence and is not against the manifest weight of the evidence. The
                                                17


court also correctly awarded Ms. Schiavoni prejudgment interest and her attorney fees. The

judgment of the Medina County Probate Court is affirmed.

                                                                              Judgment affirmed.




       There were reasonable grounds for this appeal.

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

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

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

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

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

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

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

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                     CLAIR E. DICKINSON
                                                     FOR THE COURT

WHITMORE, P. J.
BELFANCE, J.
CONCUR.

APPEARANCES:

RONALD N. TOWNE, TIMOTHY HANNA, and ANN L. WEHENER, Attorneys at Law, for
Appellant.

PATRICIA J. SCHRAFF and JOHN P. THOMAS, Attorneys at Law, for Appellee.
