[Cite as In re Estate of Sowande, 2014-Ohio-5384.]


                                   IN THE COURT OF APPEALS

                               ELEVENTH APPELLATE DISTRICT

                                     PORTAGE COUNTY, OHIO


IN RE: THE ESTATE OF OLUFELA                         :   OPINION
OBFUNMILAYO SOWANDE a.k.a. FELA
SOWANDE (DECEASED)                                   :
                                                         CASE NO. 2014-P-0018
                                                     :



Appeal from the Portage County Court of Common Pleas, Probate Division, Case No.
1987 ES 36785.

Judgment: Affirmed.


Leanne A. Sowande, pro se, 13500 Pearl Road, Suite 139 #208, Strongsville, OH
44136 (Appellant).

Reuben J. Sheperd, Reuben J. Sheperd Attorney at Law, 11510 Buckeye Road,
Cleveland, OH 44104 (For Appellee-David L. Moore).



CYNTHIA WESTCOTT RICE, J.

        {¶1}    Appellant, Leanne A. Sowande, appearing pro se, appeals the judgment

of the Portage County Court of Common Pleas, Probate Division, denying her motion to

vacate the order settling the fiduciary account filed in the estate of her late father, which

was closed 26 years ago in 1988. At issue is whether the trial court’s finding that the

executrix did not commit fraud in administering the estate was supported by competent,

credible evidence. For the reasons that follow, we affirm.

        {¶2}    On March 13, 1987, Olufela Obfunmilayo Sowande, a.k.a. Fela Sowande,

passed away while residing in Portage County, Ohio. On May 13, 1987, decedent’s
wife, Eleanor McKinley Sowande, filed the decedent’s will, an application to probate the

will, and an application for authority to administer the estate. The court admitted the will

to probate; appointed Mrs. Sowande executrix; and ordered her to provide notice that

the will was offered to probate.

       {¶3}   In May 1987, Mrs. Sowande filed an affidavit stating that the decedent had

previously been married and had two daughters from the prior marriage who are now

married and emancipated, but that she did not know their married names or present

whereabouts.

       {¶4}   Pursuant to this notice, on May 21, 1987, the trial court vacated the

admission of the will to probate and the appointment of Mrs. Sowande as executrix, and

ordered her to provide notice by publication to decedent’s unknown heirs of the offering

of the will to probate. Such notice was provided in accord with Ohio law, and stated that

a hearing would be held on July 6, 1987 on Mrs. Sowande’s application to admit the will

to probate. Pursuant to this legal notice and without objection, the will was re-admitted

to probate and Mrs. Sowande was re-appointed executrix on November 9, 1987. Notice

of her appointment was duly published.

       {¶5}   In the months that followed, Mrs. Sowande settled the estate.             Mr.

Sowande’s will, dated November 23, 1982, expressly excluded his two daughters from

receiving any assets from his estate and named his wife his sole beneficiary. The final

account of the estate was filed on February 5, 1988.            All assets were properly

accounted for.     The trial court approved the final account on March 24, 1988.

Thereafter, the estate was closed and the fiduciary was discharged.




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       {¶6}   Some 12 years later, in 2000, Mrs. Sowande passed away. Her estate

was administered by her son and the decedent’s step-son, appellee, David L. Moore, in

the state of Montana. Mr. Moore was the sole beneficiary under his mother’s will. Her

estate is now closed.

       {¶7}   Nearly 26 years after the estate of Fela Sowande was closed, on October

25, 2013, his daughter from a prior marriage, appellant, Leanne A. Sowande, who was

then 75 years old, filed a motion to reopen her late father’s estate and to appoint her to

administer his estate, which was supported by over 200 pages of documents. The

motion was filed under R.C. 2109.35(A), and was essentially a motion to vacate the

order settling the fiduciary account filed in the estate. Appellant alleged Mrs. Sowande

committed fraud in the administration of her father’s estate.

       {¶8}   The court held a conference on the motion on November 26, 2013.

Appellant appeared pro se and appellee appeared through his counsel.           The court

stated it had reviewed appellant’s motion and its attachments.

       {¶9}   Appellant stated her father, Fela Sowande, was from Nigeria. He was a

music composer and moved to the United Kingdom when he was 37 years old. In 1968,

when he was in his 70s, he moved to the United States where he taught music at Kent

State University and resided in Portage County, Ohio.

       {¶10} Appellant said her father had copyrights on some of his musical

compositions; tape recordings of other music he had written; ceremonial clothing; and

several family photos that were not listed as assets on the estate inventory. She does

not know their monetary value, but said their value was mostly “sentimental.” She said

she wanted to be appointed fiduciary of her father’s estate to answer questions she has




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regarding whether anything was “out of line” with regard to the administration of her

father’s estate. She said she filed her motion under R.C. 2109.35(A).

          {¶11} Appellee’s counsel said that at the time of Mr. Sowande’s death, he had a

valid will. Proper notice was given and there was no fraud. He said that the executrix

died many years ago and thus is unable to defend against appellant’s baseless

accusations. He said that appellee, as his mother’s sole beneficiary, has pursued the

items at issue, but that he has been unable to determine if any of this property still

exists.

          {¶12} The court set the matter for an evidentiary hearing on appellant’s motion

to vacate. The court gave appellant three months to retain counsel if she chose to do

so and to give her counsel sufficient time to prepare for the evidentiary hearing. The

court strongly urged appellant to retain counsel for the upcoming hearing.

          {¶13} On February 26, 2014, the trial court held the evidentiary hearing. Once

again, appellant appeared pro se and appellee appeared through his counsel. The

court asked appellant to outline her evidence of Mrs. Sowande’s alleged fraud.

Appellant said she had two examples of the fraud. First, in Mrs. Sowande’s May 1987

affidavit for service by publication, she said she did not know the present whereabouts

of her husband’s two daughters. Appellant said this was a lie and a fraud because she

had talked to her father in 1985 and she told him where she lived. Appellant argued this

proved that Mrs. Sowande knew her address and should have given her notice of the

probate estate.




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       {¶14} For her second example of Mrs. Sowande’s alleged fraud, appellant said

she does not understand why Mrs. Sowande did not include her father’s musical works

in his inventory.

       {¶15} Appellant argued she could not have challenged her father’s will earlier

because she was not notified of her father’s probate case.           However, materials

submitted with appellant’s motion to reopen show that she knew her father resided in

Portage County at the time of his death in March 1987. Further, appellant learned

about his death in July 1987, which was eight months before the court approved the

final account of his estate on March 24, 1988. Yet, appellant did nothing for the next 25

years to determine whether a probate estate had been opened for her father, and did

not file her motion to vacate until October 25, 2013.

       {¶16} Appellee’s counsel said that no one knows where Fela Sowande’s musical

compositions and other items mentioned by appellant are located or where to pursue

them. Thus, he said there would be no point in reopening the estate to include them.

       {¶17} The court said it would review again all of appellant’s filings before ruling

on her motion.

       {¶18} On April 1, 2014, the court entered judgment denying appellant’s motion to

vacate. In support, the court made detailed findings of fact and conclusions of law. The

court stated it had considered the documents attached to appellant’s motion and found

no evidence of fraud.

       {¶19} One week later, on April 7, 2014, appellant submitted a letter to the clerk

of the trial court, with the following attachments: (1) a letter requesting that all court

proceedings be transcribed; (2) a letter requesting findings of fact and conclusions of




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law in support of the court’s judgment; and (3) “Material Evidence RE: Challenge to

Alleged Marital Status of Principal Parties in This Case.”

       {¶20} On April 8, 2014, the trial court signed a journal entry stating its April 1,

2014 judgment denying appellant’s motion to vacate was the court’s findings of fact and

conclusions of law.

       {¶21} Appellant appeals the trial court’s April 1, 2014 judgment, asserting four

assignments of error. Her first assigned error alleges:

       {¶22} “The trial court denied due process guaranteed by the 14th Amendment of

the United States Constitution to the Appellant Leanne A Sowande and the Appellant’s

sister Beverly F. Sowande (now deceased) by prejudicially excluding relevant evidence,

that the fiduciary’s failure to provide ‘meaningful notice’ at a ‘meaningful time’ to the

known and/or easily ascertainable address of the Appellant and the Appellants sister

Beverly F. Sowande (now deceased), pursuant to R.C. 2109.02, was a harmful,

deliberate, act of constructive fraud; and, that the trial court failed to provide ‘meaningful

notice at a meaningful time’ to the Appellant, that the relevant evidence of constructive

fraud had been excluded by the Court violating Fed. Rules of Evidence 401-402 and

Ohio Rules of Evidence 401-402.” (Sic throughout.)

       {¶23} Before addressing the merits of this assigned error, we note that Leanne

A. Sowande is the sole appellant in this case and that her sister Beverly passed away in

2010. Thus, appellant cannot assert the alleged violation of Beverly’s rights in this

appeal. We therefore confine our analysis and holding to appellant’s appeal.

       {¶24} Moreover, at the November 26, 2013 conference, appellant argued her

motion was based on R.C. 2109.35(A). That section provides:




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       {¶25} The order of the probate court upon the settlement of a fiduciary’s

              account shall have the effect of a judgment and may be vacated

              only as follows:

       {¶26} The order may be vacated for fraud, upon motion of any person

              affected by the order * * *, if the motion is filed * * * within one year

              after discovery of the existence of the fraud.

       {¶27} “R.C. 2109.35(A) permits a motion to vacate to be filed within the year

after fraud is discovered.” Santillo v. Fenwick, 9th Dist. Summit No. 16801, 1995 Ohio

App. LEXIS 391, *6 (Feb. 1, 1995). The undisputed evidence shows that appellant did

not file her motion within the one-year time limit set forth in this statute. The documents

attached to appellant’s motion to vacate show that on February 9, 2012, appellant wrote

a letter to the trial court regarding her father’s estate. Thus, she was aware of the

existence of the estate by that date. Further, these documents show that on April 2,

2012, she wrote an e-mail stating she had a fraud claim regarding her father’s musical

works and that she was “taking steps to correct” this. Thus, appellant discovered her

alleged fraud claim at the latest by April 2, 2012, and had until April 2, 2013, to file her

motion to reopen, but did not file it until six months later on October 25, 2013. While

appellant’s motion to reopen was thus untimely by six months, appellee did not raise

this issue below and it is thus waived. State v. Awan, 22 Ohio St.3d 120,122 (1986).

       {¶28} Turning now to the merits of appellant’s appeal, “‘R.C. 2109.35(A), which

provides that the settlement order of the probate court may be vacated upon the motion

of any person affected thereby, is based upon fraud. Fraud must be shown by clear

and convincing proof.’”      Mathe v. Fowler, 13 Ohio App.3d 273, 274-275 (11th




                                              7
Dist.1983), quoting In re Estate of Nyhuis, 65 Ohio Law Abs. 65 (App.1952). “Cases

vacating settlement orders on the basis of fraud usually involve an intentional

misappropriation of funds by an administrator * * *.” Mathe, supra, at 275.

       {¶29} In Mathe, this court held that a motion to vacate on the basis of fraud was

properly denied because the record did not contain clear and convincing proof that the

fiduciary intentionally omitted a tort claim from the account to defraud the tort claimants.

Mathe, supra, at 275. In Mathe, there was a dispute about the sufficiency of the tort

complaint and the claim was not liquidated when the account was filed.             In those

circumstances, this court held there was no clear and convincing proof of fraud and thus

the trial court did not err in denying the motion to vacate by reason of fraud. Id.    As a

result, under R.C. 2109.35(A), an allegation of fraud must be supported by clear and

convincing evidence that the fiduciary intentionally defrauded the court, a beneficiary,

and/or an estate claimant.

       {¶30} Further, in Pengelly v. Thomas, 151 Ohio St. 51 (1949), the Supreme

Court of Ohio held that an executrix who innocently held herself out as the lawful wife of

the deceased had not committed fraud when, three years after approval of her final

account, it was discovered that the deceased had been previously married; that he was

never divorced; and that the executrix was thus not actually his wife. Id. at syllabus.

       {¶31} Appellant’s first assigned error essentially challenges the court’s judgment

denying her motion to vacate as being against the manifest weight of the evidence. In a

civil case, an appellate court will not reverse a judgment as being against the weight of

the evidence as long as there is some competent, credible evidence supporting the

judgment. C.E. Morris Co. v. Foley Construction Co., 54 Ohio St.2d 279 (1978),




                                             8
syllabus. Even if we do not agree with the trial court or might have found differently, we

cannot substitute our judgment for that of the trial court. We must give deference to the

trier of fact because it is best able to observe the witnesses and their demeanor and to

determine their credibility. Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77, 80 (1984).

       {¶32} Appellant argues Mrs. Sowande committed fraud by, first, stating in her

affidavit for service by publication that she did not know appellant’s present

whereabouts, and, second, by not including her father’s musical works and other items

in his inventory.

       {¶33} For the first prong of appellant’s fraud argument, she contends that

because she gave her address to her father two years before his death, Mrs. Sowande

lied when she said in her affidavit that she did not know her present whereabouts.

However, the fact that appellant gave her address to her father two years before his

death does not mean her father gave her address to his wife. Without proof that Mrs.

Sowande actually knew appellant’s address when she executed her affidavit, there is no

clear and convincing evidence of fraud. Mathe, supra.

       {¶34} Appellant alternatively argues that, even if Mrs. Sowande did not engage

in actual fraud, the evidence supported a finding of constructive fraud. Constructive

fraud is the breach of a duty, which, regardless of the existence of fraudulent intent, the

law declares fraudulent, because of its tendency to deceive others or violate a

confidence. Cohen v. Estate of Cohen, 23 Ohio St.3d 90, 91 (1986). “Constructive fraud

often exists where the parties to a contract have a special confidential or fiduciary

relationship.” Id. at 92. However, in her motion to vacate, appellant alleged “deliberate

fraud” and never argued her claim was based on constructive fraud. Moreover, at both




                                            9
the conference and the evidentiary hearing, appellant never said her motion was based

on constructive fraud.

       {¶35} It is well-established that an appellant may not assert a new theory for the

first time before an appellate court. Kalish v. Trans World Airlines, 50 Ohio St.2d 73, 77

(1977). “Having determined the impropriety of the presentment of appellant’s

[argument], no discussion of its merits is warranted.” Id.

       {¶36} In any event, because there was no evidence Mrs. Sowande breached a

contract with or violated a fiduciary duty owed to appellant, there was no evidence of

constructive fraud.

       {¶37} For the second prong of appellant’s fraud argument, she contends the fact

that her father’s musical works, copyrights, audio tapes, ceremonial clothing, and

photos were not included on the inventory also proves Mrs. Sowande’s fraud. However,

appellant did not submit any evidence that Mrs. Sowande was aware of the existence of

any of these items. Without evidence that appellant knew about these items, there was

no clear and convincing evidence of fraud. Mathe, supra.

       {¶38} We therefore hold the trial court’s finding that Ms. Sowande did not

engage in fraud was supported by competent, credible evidence and the court’s denial

of appellant’s motion to vacate was not against the manifest weight of the evidence.

       {¶39} Appellant’s first assignment of error is overruled.

       {¶40} Because appellant’s second, third, and fourth assigned errors are

interrelated, repetitive, and governed by the same legal principles, they are considered

together. They allege:




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       {¶41} “[2.] The trial Court committed prejudicial error in (1) its failure to

acknowledge, consider, and admit into the record of the proceedings, Court certified

existing documentary evidence, and NEW, verifiable, documentary evidence, properly

submitted to the Court by the Appellant pursuant to Fed. Rules of Evidence 401-402

and Ohio Rules of Evidence 401-402; and, (2) the trial Court committed prejudicial error

in its failure to judicially notice, or otherwise lawfully notice the Appellant of any

deficiency, rejection, and/or exclusion of relevant evidentiary documents, by providing a

clear statement of cause, and method to cure any found deficiency, that would result in

the Court’s rejection, and/or exclusion of the properly submitted documentary evidence;

and, (3) in so doing the trial Court denied 14th Amendment procedural due process to

this Appellant.

       {¶42} “[3.] The trial Court committed prejudicial error violating Fed. Rules of

Evidence 401-402 and Ohio Rules of Evidence 401-402. by wrongly excluding relevant

evidence of Obstruction of Justice, [violation of R.C. 2911, R.C. 2921.12; and 18 U.S.C.

Section 1001] by the fiduciary and Executrix Eleanor McKinney (Sowande) in her

knowing filing of false documents with the Court in the probate of 1987; and, the Court

committed prejudicial error violating Fed. Rules of Evidence 401-402 and Ohio Rules of

Evidence 401-402 in wrongly excluding relevant evidence of Obstruction of Justice,

[violation of R.C.2911, R.C. 2921.12;and 18 U.S.C. Section 1001] in the knowing filing

of false documents with a Federal Court, by the Appellee, David L. Moore, in 2012. The

trial Court’s prejudicial exclusion of the relevant evidence of Obstruction of Justice,

further denied 14th Amendment’s procedural due process to this Appellant.




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       {¶43} “[4.] The trial Court committed prejudicial error [violating Fed. Rules of

Evidence 401-402] and denied the Appellant 14th Amendment due process in:                (1)

wrongly excluding relevant evidence that supports the Appellant’s claims of fraud and

denial of due process articulated in the Motion to Reopen; and, (2) prejudicially

excluded relevant evidence without timely notification provided to the Appellant with

information as to cause(s) of the exclusion, and/or, timely information of the procedures

to cure deficiencies and prevent exclusion, and, (3) demonstrated prejudicial partiality

and bias in the Journal Entries which, rule entirely against the weight of the relevant,

substantial, clear, and compelling evidence of fraud submitted to the court by the

Appellant in 2013 and 2014; and (4) demonstrated partiality and bias in the misleading

language [no evidence was offered] in the Court’s Order overruling the Appellant’s

Motion to Reopen Case Number ES 1987 36785 pursuant to R.C. 2109.35(A).” (Sic

throughout.)

       {¶44} Appellant argues that because the court found there was no evidence of

fraud on the part of the fiduciary, this means the court improperly excluded her

documents from the evidence. However, the court did not exclude any of her exhibits.

In fact, during the conference, the court stated it had considered the evidence appellant

had submitted with her motion to reopen. And, during the evidentiary hearing, the court

said it would again review all documents that appellant had filed before ruling on her

motion. Moreover, in its judgment, the court stated it had “considered the statements of

[appellant] and [appellee’s counsel]. The court also considered the filings of [appellant].”

Thus, the court did not exclude any of the documents submitted by appellant with her




                                            12
motion.   The court simply found that none of these documents proved that Mrs.

Sowande committed fraud in administering her husband’s estate.

      {¶45} Next, appellant argues that her post-judgment letter to the court asking for

findings of fact and conclusions of law regarding the court’s April 1, 2013 judgment

constituted a request for judicial notice of the documents she submitted. However, this

letter could not reasonably be construed as a request for judicial notice.       Because

appellant never asked the court to take judicial notice, the court was not required to do

so. Evid.R. 201(D). Moreover, by not requesting judicial notice, any issue regarding the

taking of judicial notice is waived. Awan, supra, at 122.

      {¶46} Next, appellant argues the trial court gave her leave to submit additional

evidence at the February 26, 2014 evidentiary hearing and that the documents she sent

to the court after final judgment was entered were submitted pursuant to such leave.

However, appellant either misstates or misconstrues the court’s comments. Appellant

did not request and the court did not grant her such leave. Instead, the court stated, not

at the February 26, 2014 evidentiary hearing, but, rather, during the November 26, 2013

conference, that the court would schedule the evidentiary hearing in 90 days on

February 26, 2014. The court said the purpose of setting the evidentiary hearing so far

in advance was to give any attorney appellant might retain an opportunity to prepare for

the evidentiary hearing and to review her motion to decide whether it needed to be

amended. Thus, contrary to appellant’s argument, the court did not give her leave to

amend her motion or to file additional documents, let alone after the court entered final

judgment on her motion.




                                            13
       {¶47} Alternatively, appellant argues that Civ.R. 15(B) allows for the admission

of her post-judgment documents “to conform to the evidence.” However, in making this

argument, she misconstrues Civ.R. 15(B), which allows amendments to the pleadings to

conform to the evidence to reflect issues raised at trial.          Contrary to appellant’s

argument, this rule does not allow a court to admit documents concerning issues that

were not tried, which were submitted to the court for the first time after trial and after the

court entered final judgment without leave of court.

       {¶48} Next, appellant argues the trial court was required to give her notice of any

deficiencies or errors in the documents she submitted post-judgment so she could have

cured them. However, because appellant submitted the documents at issue after the

court entered final judgment, the case was closed and the court was not required to

address them or to explain to appellant why it did not address them.              Appellant’s

decision to proceed pro se does not excuse her ignorance or misunderstanding of the

law. “‘While one has the right to represent himself or herself and one may proceed into

litigation as a pro se litigant, the pro se litigant is to be treated the same as one trained

in the law as far as the requirement to follow procedural law and adherence to court

rules. If the courts treat pro se litigants differently, the court begins to depart from its

duty of impartiality and prejudices the handling of the case as it relates to other litigants

represented by counsel.’” Craft v. Edwards, 11th Dist. Ashtabula No. 2007-A-0095,

2008-Ohio-4971, ¶41, quoting State v. Pryor, 10th Dist. Franklin No. 07-AP-90, 2007-

Ohio-4275, ¶9.

       {¶49} Next, appellant claims her post-judgment documents were relevant

because they challenged the marital status of her father and Mrs. Sowande. However,




                                             14
aside from the fact that these documents were submitted post-judgment and without

leave of court, even if they were relevant for such purpose, without proof that Mrs.

Sowande knew about them or their contents, they would not have proved intentional

fraud. Pengelly, supra.

      {¶50} Finally, appellant’s argument that the trial court engaged in the crime of

obstruction of justice by not considering her untimely-filed documents is without legal or

factual support and does not merit further discussion.

      {¶51} Appellant’s second, third, and fourth assignments of error are overruled.

      {¶52} For the reasons stated in this opinion, appellant’s assignments of error

lack merit and are overruled. It is the judgment and order of this court that the judgment

of the Portage County Court of Common Pleas, Probate Division, is affirmed.



THOMAS R. WRIGHT, J.,

COLLEEN MARY O’TOOLE, J.,

concur.




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