[Cite as Estate of Everhart v. Everhart, 2014-Ohio-2476.]



                                     IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                            FAYETTE COUNTY




THE ESTATE OF EDDIE R. EVERHART,                            :
ANNA J. EVERHART,
                                                            :   CASE NOS. CA2013-07-019
        Plaintiff-Appellee,                                               CA2013-09-026
                                                            :
                                                                     OPINION
    - vs -                                                  :         6/9/2014

                                                            :
BRADLEY L. EVERHART, et al.,
                                                            :
        Defendants-Appellants.
                                                            :



         CIVIL APPEAL FROM FAYETTE COUNTY COURT OF COMMON PLEAS
                              PROBATE DIVISION
                            Case No. 11 PC 00149C



Peter D. Quance, 344 Jefferson Street, P.O. Box 210, Greenfield, Ohio 45123, for plaintiff-
appellee, Anna J. Everhart, Administratrix of Estate of Eddie R. Everhart

Cutright & Cutright LLC, James K. Cutright, 76 W. Second Street, Chillicothe, Ohio 45601, for
plaintiff-appellee, Anna J. Everhart, Individually, and Darlene N. Everhart

Conrad A. Curren, Carol Ann Curren, 330 Jefferson Street, P.O. Box 149, Greenfield, Ohio
45123, for defendant-appellant, Bradley L. Everhart



        RINGLAND, P.J.

        {¶ 1} Defendant-appellant, Bradley Everhart, appeals the decision of the Fayette

County Probate Court in a consolidated lawsuit involving a will contest, a complaint for

exceptions to inventory of decedent's estate, and a declaratory judgment action. For the
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reasons detailed below, we affirm the decision of the trial court.

       {¶ 2} This claim largely revolves around competing ownership rights to a farm

previously owned and operated by decedent, Eddie Everhart, located at 6946 Limes Road,

Greenfield, Fayette County, Ohio. The trial court awarded the farm to Anna Everhart, who

the trial court also found was decedent's common-law wife.

       {¶ 3} The following facts are undisputed in the record. Decedent was married to

Thelma Fryer and had four children by issue of that marriage: Bradley, Herbert, Christian,

and David. The marriage ended in divorce in 1984.

       {¶ 4} In 1987, decedent began a relationship with Anna Everhart. Decedent and

Anna had one child, Darlene Everhart, born in 1988. All three lived on the farm together in

the same residence until the time of decedent's death. It is also undisputed that decedent

and Anna were second cousins.

       {¶ 5} The record reflects that throughout his life, decedent was engaged in farming

operations and the raising of cattle. Decedent's son, Bradley, participated in the farming

operations and also lived on the farm. Anna and Bradley presented conflicting accounts of

Bradley's involvement in the farming operations. Bradley testified that he was a partner in

the farming operations with decedent and described the work he performed as substantial.

However, Anna described Bradley's relationship with decedent as "parasitic" and testified that

Bradley only performed occasional work on the farm in order to ensure that decedent

continued to allow him to live rent free on the farm and to ensure that decedent would supply

him with occasional spending money.

       {¶ 6} In July 2010, decedent learned he had terminal cancer. On July 23, 2010,

decedent conveyed the farm to Anna and also conveyed several residential rental properties

to Darlene, his daughter. That same day, decedent also executed a new will, which

bequeathed all of his remaining real and personal property to Anna. On June 24, 2011,
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decedent died and the following dispute ensued.

       {¶ 7} On July 27, 2011, Anna Everhart, acting as decedent's surviving spouse and

executor of his estate, filed an application for summary release from administration in the

Fayette County Probate Court, which was granted on August 3, 2011 and the case was

closed. Subsequently, Bradley filed a new action to compel production of decedent's will and

argued that he was entitled to decedent's farm. In response, Anna reopened the case as a

full administration of decedent's estate and filed decedent's will with the probate court.

Bradley complained the will filed in the probate court was a product of undue influence and

therefore invalid.

       {¶ 8} In addition to the action for administration of decedent's estate, Anna and

Bradley also disputed the ownership rights of cattle that were located on the farm. The

record reflects that at some point following decedent's death, Anna sold 114 head of cattle, of

which Bradley claimed an interest. As a result, on January 20, 2012, Anna filed an action

individually for declaratory judgment in the Fayette County Court of Common Pleas, General

Division, seeking to be declared the lawful owner of the cattle. In response, Bradley filed an

answer and counterclaim alleging that Anna was not decedent's wife and also alleging that

Bradley and decedent were partners in the farming operation. Bradley's answer and

counterclaim did not include a jury demand.

       {¶ 9} On June 20, 2012, the actions were consolidated. On November 8, 2012,

Bradley sought leave to amend his counterclaim to add Darlene as a party, in order to

contest the validity of the residential rental property transfers, which the trial court granted. In

his amended counterclaim, Bradley also included a jury demand. In a subsequent ruling, the

trial court struck Bradley's request for a jury trial as untimely.

       {¶ 10} On February 25, 2013, the matter proceeded to trial. A jury trial was held with

respect to the will contest action regarding Bradley's claim that the will was invalid on the
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basis of undue influence. Following the close of evidence, the jury returned a verdict in favor

of Bradley, finding decedent's will was a product of undue influence, thereby rendering it

invalid. As a result, the trial court found decedent died intestate.

       {¶ 11} On February 26, 2013, the remaining issues were tried to the bench. On June

5, 2013, the trial court issued its written findings of fact and conclusions of law. Pertinent to

this appeal, the trial court found: (1) Anna Everhart was the common-law wife of decedent,

(2) the property transfers to Anna and Darlene were not the product of undue influence, and

(3) Bradley was not a partner in decedent's farming operation. Therefore, the trial court

found that Anna was the owner of the farm and the cattle and Darlene was the owner of the

residential rental property.

       {¶ 12} Bradley now appeals the decision of the trial court raising five assignments of

error for review.

       {¶ 13} Assignment of Error No. 1:

       {¶ 14} THE     TRIAL     COURT      ERRED      TO     THE    DETRIMENT        OF     THE

DEFENDANT/APPELLANT WHEN IT ABUSED ITS DISCRETION IN DENYING

DEFENDANT-APPELLANTS, BRADLEY EVERHART, ET AL., A JURY TRIAL ON ALL

ISSUES WHEN THE CASES WERE CONSOLIDATED AFTER THE COMPLAINT WAS

FILED.

       {¶ 15} In his first assignment of error, Bradley argues the trial court erred in denying

him a jury trial on all issues. We find Bradley's argument is without merit.

       {¶ 16} It is well-established that an individual does not possess a constitutional or

statutory right to a jury trial during a probate proceeding. State ex rel. Kear v. Court of

Common Pleas of Lucas Cty., Probate Div., 67 Ohio St.2d 189, 191-192 (1981); First Nat.

Bank of Southwestern Ohio v. Miami Univ., 121 Ohio App.3d 170, 178 (12th Dist.1997); In re

Kister, 4th Dist. Athens No. 10CA19, 2011-Ohio-2678, ¶ 52.              Indeed, R.C. 2101.31
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specifically states:

             All questions of fact shall be determined by the probate judge,
             unless the judge orders those questions of fact to be tried before a
             jury or refers those questions of fact to a special master
             commissioner as provided in sections 2101.06 and 2101.07 of the
             Revised Code.

       {¶ 17} The present case involves three separate actions in a consolidated lawsuit in

the Fayette County Probate Court: a will contest, a complaint for exceptions to inventory of

decedent's estate, and a declaratory judgment action. In particular, Bradley argues the trial

court should have permitted the jury to decide the issues contained in the declaratory

judgment action, namely, whether Anna was decedent's common law spouse.

       {¶ 18} As an initial matter, we note that a probate court is a court of limited jurisdiction,

and probate proceedings are restricted to those actions permitted by statute and by the

constitution. Corron v. Corron, 40 Ohio St.3d 75 (1988), paragraph one of the syllabus.

"Statutes which create a declaratory judgment procedure do not extend the jurisdiction of the

subject matter of a court but rather extend the power of the court to grant declaratory relief

within its respective jurisdiction. In other words, declaratory judgment statutes provide an

additional remedy which may be granted by a court but they do not extend the jurisdiction as

to the subject matter upon which a court may act." Nemcek v. Paskey, 137 Ohio Misc.2d 1,

2006-Ohio-2059, ¶ 12 (P.C.), quoting Ryan v. Tracy, 6 Ohio St.3d 363, 366 (1983). "The

probate court has jurisdiction to render declaratory judgments pursuant to R.C. Chapter 2721

and R.C. 2101.24." Nemcek at ¶ 12; See also First Nat. Bank of Southwestern Ohio at 174.

       {¶ 19} Although Bradley alleges those issues contained in the declaratory judgment

action should have been presented to the jury, we note that a probate court has the

discretionary power in a declaratory judgment action to empanel a jury to make the factual

determinations. First Nat. Bank of Southwestern Ohio at 177-178 ("the determination of

whether factual issues will be tried to a jury is committed to the sound discretion of the
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probate court"), citing Renee v. Sanders, 160 Ohio St. 279 (1953), paragraph five of the

syllabus. As noted by the Ohio Supreme Court

             Where an action for declaratory judgment is properly instituted in
             the probate court, this code provision is applicable, and questions
             arising out of the trial of the issues shall be determined by the
             probate judge unless upon his own initiative or request of either
             party, the probate judge shall, in the exercise of his discretion,
             order such questions of fact to be tried by a jury or referred as
             otherwise authorized in the statutes.

Renee v. Sanders, 160 Ohio St. 279 (1953), paragraph five of the syllabus; accord First Nat.

Bank of Southwestern Ohio at 177; Giurbino v. Giurbino, 89 Ohio App.3d 646, 662 (8th Dist.

1993); In re Estate of Lucitte, 6th Dist. Lucas No. L-10-1136, 2012-Ohio-390, ¶ 67. "This rule

applies despite language in R.C. 2311.04 which provides that issues of fact arising in actions

for the recovery of real or personal property shall be tried by a jury." Giurbino at 662, quoting

Renee at 285 (construing G.C. 11379, the identical forerunner of R.C. 2311.04, and G.C.

10501-32, the predecessor to R.C. 2101.31). "In addition, R.C. 2721.10, which guarantees

litigants the right to have issues of fact presented in declaratory judgment actions determined

in the same manner as issues of fact are generally determined by the court hearing the

action, does not contradict this rule." Id. Accordingly, because the determination of whether

to empanel a jury on the issues relating to the declaratory judgment action was within the

sound discretion of the trial court, we find the trial court did not err in denying Bradley's

request for a jury trial.

       {¶ 20} As an additional matter, we note the record also supports the trial court's

references to Bradley's untimely jury demand. See Civ.R. 38(D) ("[t]he failure of a party to

serve a demand as required by this rule * * * constitutes a waiver by him of trial by jury"). In

this case, Anna filed the declaratory judgment action on January 20, 2012. In response,

Bradley filed his answer and counterclaim on February 21, 2012. Neither pleading contained

a jury demand. On June 20, 2012 the declaratory judgment action was consolidated with the
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other pending actions, including the will contest action. Nevertheless, Bradley did not include

a jury demand on the issues contained in the declaratory judgment action until November 8,

2012 when he filed his amended answer and counterclaim.1 Accordingly, the trial court also

correctly noted that Bradley's jury demand was untimely.

        {¶ 21} Therefore, Bradley's first assignment of error is overruled.

        {¶ 22} Assignment of Error No. 2:

        {¶ 23} THE        TRIAL       COURT         ERRED        TO      THE      DETRIMENT           OF      THE

DEFENDANT/APPELLANT WHEN IT FOUND ANNA EVERHART WAS THE COMMON

LAW WIFE OF EDDIE EVERHART.

        {¶ 24} In his second assignment of error, Bradley argues the trial court erred by finding

that decedent and Anna had a common law marriage. We find no merit to this argument.

        {¶ 25} As an appellate court, our review of a trial court's decision is limited to whether

the judgment is against the manifest weight of the evidence. Jones v. Homes, 12th Dist.

Butler No. CA2012-07-133, 2013-Ohio-448, ¶ 24. The Ohio Supreme Court has confirmed

that when reviewing the manifest weight of the evidence, an appellate court conducts the

same analysis in both criminal and civil cases. Eastley v. Volkman, 132 Ohio St.3d 328,

2012-Ohio-2179, ¶ 12. As such, we weigh the evidence and all reasonable inferences,

consider the credibility of witnesses, and determine 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." Id. at ¶ 20, quoting

State v. Thompkins, 78 Ohio St.3d 380, 387 (1997).

        {¶ 26} If the evidence presented to the trial court is susceptible to more than one

interpretation, we are bound to give it the construction that is consistent with the trial court's


1. The trial court also noted in its entry striking Bradley's jury demand that Bradley never sought leave to include
a jury demand in his amended counterclaim. See Civ.R. 15.
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judgment and finding of facts. Jones at ¶ 24. A reviewing court should not reverse a

decision simply because it holds a different opinion concerning the credibility of the witnesses

and the evidence submitted before the trial court. Artisan & Truckers Cas. Co. v. JMK

Transp., L.L.C., 12th Dist. Clermont No. CA2013-01-004, 2013-Ohio-3577, ¶ 25. The

underlying rationale of this deferential standard rests with the understanding that "the trial

judge is best able to view the witnesses and observe their demeanor, gestures and voice

inflections, and use these observations in weighing the credibility of the proffered testimony."

Mike Castrucci Ford Sales, Inc. v. Hoover, 12th Dist. Clermont No. CA2007-02-022, 2008-

Ohio-1358, ¶ 19, quoting Seasons Coal Co., Inc. v. City of Cleveland, 10 Ohio St.3d 77, 80

(1984).

       {¶ 27} A common-law marriage is the "joinder of a man and a woman as husband and

wife without having first observed the formalities of licensure papers or ceremony." Keefe v.

Doornweerd, 9th Dist. Summit No. 26377, 2013-Ohio-250, ¶ 11. Ohio has prohibited

common-law marriages occurring on or after October 10, 1991. Polly v. Coffey, 12th Dist.

Clermont No. CA2002-06-047, 2003-Ohio-509, ¶ 33; R.C. 3105.12(B)(1). Common law

marriages that occurred prior to that date continue to be recognized and remain valid unless

terminated by death, divorce, dissolution of marriage, or annulment. Brooks v. Brooks, 12th

Dist. Warren No. CA2000-08-079, 2001 WL 433376, *2 (Apr. 30, 2001); R.C. 3105.12(B)(2).

A party seeking to establish a common law marriage must show: "(1) an agreement of

marriage in praesenti, (2) cohabitation as husband and wife, and (3) a holding out by the

parties to those with whom they normally come into contact, resulting in a reputation as a

married couple in the community." Coffey at ¶ 33; Doornweerd at ¶ 12.

       {¶ 28} The party seeking to establish a common-law marriage bears the burden of

establishing each of its elements by clear and convincing evidence. Coffey at ¶ 34; Brooks at

*2; Nestor v. Nestor, 15 Ohio St.3d 143, 145 (1984). Clear and convincing evidence is that
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degree of proof which produces in the mind of the trier of fact "a firm belief or conviction as to

the allegations sought to be established." Cross v. Ledford, 161 Ohio St. 469, 477 (1954). In

deciding whether a party has presented clear and convincing evidence of a common-law

marriage, the weight to be given the evidence and the credibility of witnesses is a

determination to be made by the trier of fact. Coffey at ¶ 34.

       {¶ 29} "The contract of marriage in praesenti may be proven either by way of direct

evidence which establishes the agreement, or by way of proof of cohabitation, acts,

declarations, and the conduct of the parties and their recognized status in the community in

which they reside." Nestor at 146; Coffey, 2003-Ohio-509 at ¶ 35. Where there is no direct

proof in reference to the formation of a marriage contract, testimony regarding cohabitation

and community reputation tends to raise an inference of the marriage. Id. However, an

attempt to establish the existence of a common-law marriage will not be defeated by the fact

that "some of those with whom the parties have contact are also unaware of the [marital]

arrangement." Coffey at ¶ 36, citing Nestor at 146. Rather, the determination of a common

law marriage is given more or less strength according to the circumstances of the particular

case. Nestor at 146; Doornweerd, 2013-Ohio-250 at ¶ 19.

       {¶ 30} Based on our review of the record, we find there is competent, credible

evidence to support the trial court's factual findings and its decision was not against the

manifest weight of the evidence. In the present case, Anna testified that she began a

romantic relationship with the decedent and thereafter began living on the farm in March

1987. It is undisputed that decedent and Anna had a child together, Darlene, born in

November 1988. In addition, Anna testified that decedent presented her with an engagement

ring in 1987 and then presented her with a wedding band during Christmas 1987 as a symbol

of their marriage. Although Anna does not dispute that an official marriage license was never

issued and the marriage was never overseen by a wedding officiant, she maintains that the
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two were married in 1987 and the marriage continued until decedent's death.

       {¶ 31} Although Bradley produced conflicting testimony, the trial court, as trier of fact,

was in the best position to weigh the credibility of the witnesses. For example, Bradley

presented the testimony of witnesses who stated that decedent did not acknowledge Anna as

his wife and would say that he never would get married again. However, other evidence

contained in the record refutes the testimony provided by Bradley and further bolsters Anna's

credibility. Specifically, the record reflects that decedent filed joint tax returns with Anna for

the years of 2008-2011 as a married couple. In addition, the record also contains evidence

of signed deeds and mortgages containing signatures of decedent and Anna in the capacity

of husband and wife. Accordingly, we find the trial court's decision was supported by the

weight of the evidence and therefore Bradley's second assignment of error is overruled.

       {¶ 32} Assignment of Error No. 3:

       {¶ 33} THE     TRIAL     COURT       ERRED      TO    THE     DETRIMENT        OF     THE

DEFENDANT/APPELLANT WHEN IT FAILED TO FIND FRAUD AND UNDUE INFLUENCE

IN THE TRANSFER OF PROPERTY.

       {¶ 34} In his third assignment of error, Bradley argues the trial court committed

prejudicial error by failing to find undue influence in the property transfers made by decedent

on July 23, 2011. Specifically, Bradley seeks to invalidate: (1) the transfer of the farm to

Anna, and (2) the transfer of the residential rental property to Darlene.

       {¶ 35} "A deed executed in the correct form is presumed to be valid and will not be set

aside except upon clear and convincing evidence. Therefore, a party seeking rescission and

cancellation of a deed because of undue influence bears the burden of proof by clear and

convincing evidence." Henkle v. Henkle, 75 Ohio App.3d 732, 735 (12th Dist. 1991); Fewell

v. Gross, 12th Dist. Butler Nos. CA2006-04-096, CA2006-05-103, 2007-Ohio-5788, ¶ 27. As

this court has previously acknowledged:
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              The mere existence of undue influence, or an opportunity to
              exercise it, although coupled with an interest or motive to do so,
              is not sufficient, but such influence must be actually exerted on
              the mind of the testator with respect to the execution of the will in
              question. It must be shown that such influence, whether exerted
              at the time of the making of the will or prior thereto, was
              operative at the time of its execution or was directly connected
              therewith. It must be shown that undue influence was exercised
              with the object of procuring a will in favor of particular parties.

Henkle at 736, quoting West v. Henry, 173 Ohio St. 498, 501 (1962).

       {¶ 36} 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. West at 510-511;

see also Lakes v. Ryan, 12th Dist. Butler No. CA2002-05-118, 2003-Ohio-504, ¶ 10; Smith v.

Gold-Kaplan, 8th Dist. Cuyahoga No. 100015, 2014-Ohio-1424, ¶ 41.

       {¶ 37} In support of his assignment of error, Bradley places much emphasis on the

fact that the jury found decedent's will to be a product of undue influence, whereas the trial

court found the property transfers to Anna and Darlene were valid and not a product of undue

influence. This argument suffers from three deficiencies. First, the issues determined by the

trier of fact were subject to different burdens of proof. Compare West v. Henry, 173 Ohio St.

498 (1962), and Kidwell v. Pitts, 2d Dist. Montgomery No. 22370, 2008-Ohio-4395, fn. 1

(noting that a showing of undue influence in a will contest requires only a preponderance of

the evidence, rather than clear and convincing evidence) with Henkle at 735 and Fewell at ¶

27. Second, in addition to the testimony regarding the jury trial, the trial judge also heard

additional testimony on the issue of the relevant property transfers, which was not presented

to the jury. Finally, Bradley's argument assumes the jury's decision was correctly decided,

but simultaneously argues the trial court's decision was against the manifest weight of the

evidence.   As previously acknowledged, we review the trial court's decision under a

deferential standard of review because "the trial judge is best able to view the witnesses and
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observe their demeanor, gestures and voice inflections, and use these observations in

weighing the credibility of the proffered testimony." Mike Castrucci Ford Sales, Inc., 2008-

Ohio-1358 at ¶ 19.

         {¶ 38} In the present case, the trial court heard the testimony of Peter Quance,

decedent's attorney, who testified that he prepared the deeds transferring ownership of the

farm and the residential rental properties to Anna and Darlene. According to Quance,

decedent drove to Quance's office alone on July 20, 2011, appeared normal and calm,

despite the cancer diagnosis, and described the desired property transfers in a definite

manner. Quance further testified that on July 23, 2011, decedent returned to the office,

again alone, and signed the deeds transferring ownership of the property.

         {¶ 39} In addition to Quance's testimony, the trial court also heard the testimony of

decedent's sisters, Betty Jones and Mary Havens. Jones testified that decedent stated the

properties were transferred to Anna and Darlene and nothing was left to Bradley because of

decedent's concern about Bradley's pending divorce and decedent's desire to have the

property remain in the family. Likewise, Havens testified that decedent acknowledged the

real estate transfers when the transfers were subsequently printed in the local newspaper.

         {¶ 40} Based on our review of the record, we find the trial court's decision was not

against the manifest weight of the evidence. The trial court heard sufficient testimony that

could lead a reasonable trier of fact to conclude that the decedent did not transfer the

property because of undue influence. Accordingly, we overrule Bradley's third assignment of

error.

         {¶ 41} Assignment of Error No. 4:

         {¶ 42} THE    TRIAL    COURT        ERRED     TO   THE    DETRIMENT       OF    THE

DEFENDANT/APPELLANT WHEN IT ABUSED ITS DISCRETION IN DENYING

PLAINTIFF/APPELLANT'S MOTION AT THE CLOSE OF TRIAL TO AMEND THE
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COMPLAINT TO CONFORM WITH THE EVIDENCE IN THE CLAIM OF UNJUST

ENRICHMENT.

       {¶ 43} In his fourth assignment of error, Bradley argues the trial court abused its

discretion when it denied his request to amend his complaint at the close of evidence to

include a claim of unjust enrichment. We disagree.

       {¶ 44} The decision whether to grant or deny a Civ.R. 15(B) motion to amend

pleadings is within the discretion of the trial court. Al Castrucci Ford Sales, Inc. v. Thompson,

12th Dist. Clermont No. CA89-09-077, 1990 WL 154026, * 4 (Oct. 15, 1990); Grimes v.

Grimes, 4th Dist. Washington No. 10CA23, 2012-Ohio-3562, ¶ 17. An appellate court will not

reverse a trial court's decision on a motion to amend absent an abuse of discretion.

Cantleberry v. Holbrook, 5th Dist. Richland No. 12CA75, 2013-Ohio-2675, ¶ 15;

CommunicCare, Inc. v. Wood Cty. Bd. Of Commr.'s, 6th Dist. Wood No. WD-04-057, 2005-

Ohio-2348, ¶ 18, citing Wilmington Steel Products, Inc. v. Cleveland Elec. Illuminating Co.,

60 Ohio St.3d 120, 122 (1991). In order to find an abuse of that discretion, we must

determine the trial court's decision was unreasonable, arbitrary, or unconscionable and not

merely an error of law or judgment. Grimes at ¶ 17; Cantleberry at ¶ 15.

       {¶ 45} "As noted by Civ.R. 15(B), amendments to the pleadings may be necessary to

conform to the evidence and leave should be freely given to amend pleadings to conform to

the evidence." Cantleberry at ¶ 18. However, there must be at least a prima facie showing

by the party filing the motion to amend that the movant can "marshal support for the new

matters sought to be pleaded * * * ." Wilmington Steel Products at 122.

       {¶ 46} "In order to recover on a claim of unjust enrichment, the party asserting the

claim must demonstrate: (1) a benefit conferred by a plaintiff upon a defendant, (2)

knowledge by defendant of the benefit, and (3) retention of the benefit by the defendant

under circumstances where it would be unjust to do so without payment." Aztec Internatl.
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Foods, Inc. v. Duenas, 12th Dist. Clermont No. CA2012-01-002, 2013-Ohio-450, ¶ 75;

Fewell, 2007-Ohio-5788 at ¶ 13, citing Hambleton v. R.G. Barry Corp., 12 Ohio St.3d 179,

183 (1984).

      {¶ 47} In this case, we find no error in the trial court's decision denying Bradley's

Civ.R. 15(B) motion.     Bradley's assignment of error essentially reiterates his earlier

arguments to allege that Anna was not decedent's surviving spouse and was thereby unjustly

enriched when she gained ownership of the farm, cattle, and other items from decedent's

estate. However, as we have already noted, the trial court's finding that decedent and Anna

were married to each other by common law was supported by the weight of the evidence and

the transfer of the farm to Anna was valid. Finally, Bradley never appealed the trial court's

finding that decedent and Bradley were not partners in the farming operation. Therefore,

Bradley had no interest in the equipment or livestock that he now argues is a basis for the

unjust enrichment cause of action. Accordingly, we find the trial court did not abuse its

discretion in denying Bradley's Civ.R. 15 motion to amend the pleadings. Bradley's fourth

assignment of error is overruled.

      {¶ 48} Assignment of Error No. 5:

      {¶ 49} THE     TRIAL     COURT      ERRED       TO    THE     DETRIMENT        OF     THE

DEFENDANT/APPELLANT WHEN IT ABUSED ITS DISCRETION IN APPOINTING ANNA

EVERHART AS ADMINISTRATRIX IN THE PROBATE CASE WITHOUT THE PROPER

HEARING WHEN THE CASE HAS BEEN CONTESTED ADMINISTRATRIX [sic] IN THE

PROBATE CASE WITHOUT THE PROPER HEARING WHEN THE CASE HAS BEEN

CONTESTED.

      {¶ 50} In his fifth assignment of error, Bradley argues the trial court erred in appointing

Anna as administrator of decedent's estate without a proper hearing. Bradley alleges that

Anna "attempted fraud on the court" and should be removed as administrator. We find no
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merit to this argument.

       {¶ 51} Before addressing this issue, it is important to reiterate the procedural posture

of Bradley's motion to remove Anna as executrix. On February 25, 2013, a jury trial was held

and decedent's will was invalidated as a product of undue influence. The following day, the

remaining issues were tried to the bench. On March 19, 2013, Bradley filed the request to

remove Anna as executrix of decedent's estate. In support of this claim, Bradley referenced

the following:

                 I. Her [Anna Everhart] authorities and responsibilities as
                 Executrix were extinguished by the annulment of the will dated
                 July 23, 2010 and by this Court's Order of March 15, 2013. See
                 ORC 2109.24.

No other grounds for removal were specified in Bradley's request. On June 5, 2013, the trial

court issued its written decision and found that Anna was decedent's surviving spouse.

Thereafter, the trial court denied Bradley's motion, noting:

                 The Motion for Removal of Executrix filed on March 19, 2013 is
                 hereby denied. The Court recognizes that the title "Executrix" for
                 Anna J. Everhart should be amended to "Administrator."

Bradley filed his appeal to that decision on September 20, 2013.

       {¶ 52} The removal of a fiduciary is within the sound discretion of the probate court,

and a reviewing court will not reverse the trial court's order unless it appears that the lower

court abused its discretion. In re Estate of Perry, 12th Dist. Butler No. CA2007-03-061,

2008-Ohio-351, ¶ 30-31; In re Estate of Meloni, 11th Dist. Trumbull No. 2003-T-0096, 2004-

Ohio-7224, ¶ 32. Both R.C. 2109.24 and 2113.18 provide the statutory basis for removing a

fiduciary or executor. Meloni at ¶ 33. Under R.C. 2109.24, "[t]he court may remove any such

fiduciary * * * for habitual drunkenness, neglect of duty, incompetency, or fraudulent conduct,

because the interest of the trust demands it, or for any other cause authorized by law."

       {¶ 53} Furthermore, pursuant to R.C. 2113.08(A) "[t]he probate court may remove any


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executor or administrator if there are unsettled claims existing between the executor or

administrator and the estate that the court thinks may be the subject of controversy or

litigation between the executor or administrator and the estate or persons interested in the

estate."

       {¶ 54} Based on our review of the record, we find no abuse of discretion in the trial

court's decision denying Bradley's motion for removal of Anna as executrix. The record

clearly reflects that Bradley's only stated reason in support of his motion for removal was

based on the order finding undue influence in decedent's will. Because the finding of undue

influence invalidated decedent's will, the trial court found that decedent died intestate and

thus noted that Anna would now be considered an "administrator" as opposed to an

"executrix." An administrator is defined as "[a] person appointed by the court to manage the

assets and liabilities of an intestate decedent," while an executor is defined as "[a] person

named by a testator to carry out the provisions in the testator's will." Black's Law Dictionary

(9th Ed.2009). Accordingly, because the jury found undue influence in decedent's will, the

trial court noted that Anna's role in the administration of decedent's estate was characterized

as an "administrator."

       {¶ 55} Despite this, Bradley once again alleges that Anna is not the surviving spouse

of the decedent and raises further issues with respect to fraud and dishonesty in the

administration of decedent's estate. However, as we have previously acknowledged, the trial

court's finding that Anna was decedent's surviving spouse was supported by the weight of the

evidence.    Pursuant to R.C. 2113.07, Anna had a priority right of appointment as

administrator as the decedent's surviving spouse. Although Bradley references Anna's

"attempted fraud on the court" and "proven dishonesty," he failed to raise those issues with

the trial court and fails to demonstrate that the trial court's denial was an abuse of discretion.

State ex rel. Quarto Mining Co. v. Foreman, 79 Ohio St.3d 78, 81 (1997) (generally, appellate
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courts will not consider arguments that were never presented to the trial court whose

judgment is sought to be reversed); Hamilton v. Ebbing, 12th Dist. Butler No. CA2011-01-

001, 2012-Ohio-2250, fn. 3 ("[i]t is well-established that a party cannot raise new issues or

legal theories for the first time on appeal"). While the better practice may be to have an

administrator not so entrenched in the dispute, we find the trial court did not abuse its

discretion when it denied Bradley's motion to remove Anna as executrix of decedent's estate.

Accordingly Bradley's fifth assignment of error is overruled.

       {¶ 56} Judgment affirmed.


       PIPER and M. POWELL, JJ., concur.




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