[Cite as Cooley v. Hartland, 2014-Ohio-5452.]


                                       COURT OF APPEALS
                                     LICKING COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


IN THE MATTER OF THE ESTATE OF:    :                JUDGES:
JOAN MAE COOLEY HARTLAND, DECEASED :
                                   :
DAVID COOLEY                       :                Hon. John W. Wise, P.J.
                                   :                Hon. Patricia A. Delaney, J.
      Objector - Appellant         :                Hon. Craig R. Baldwin, J.
                                   :
-vs-                               :
                                   :
ERIC HARTLAND                      :                Case No. 14-CA-51
                                   :
      Respondent - Appellee        :                OPINION



CHARACTER OF PROCEEDING:                            Appeal from the Licking County
                                                    Court of Common Pleas, Probate
                                                    Division, Case No. 20130350A



JUDGMENT:                                           Affirmed



DATE OF JUDGMENT:                                   December 11, 2014



APPEARANCES:

For Objector-Appellant                              For Respondent-Appellee

DAVID COOLEY, Pro Se                                CHRISTIAN D. ROLAND
1287 Hillview Cir. E.                               5716 Walnut Road, Suite B
Newark, OH 43055                                    P.O. Box 0111
                                                    Buckeye Lake, OH 43008
Licking County, Case No. 14-CA-51                                                         2

Baldwin, J.

       {¶1}   Appellant David Cooley appeals a summary judgment of the Licking

County Common Pleas Court, Probate Division, dismissing his will contest action in the

estate of Joan Cooley Hartland. Appellee is Eric Hartland.

                             STATEMENT OF FACTS AND CASE

       {¶2}   Appellant is the son of Joan Mae Cooley Hartland, the decedent in the

instant action. In 2012 at the age of 80, the decedent married appellee. The decedent

executed a will on May 30, 2012, in which she left appellee a life estate in her real

property and the contents thereof, with the remainder interest to pass in equal shares to

her three children. The remainder of her property she bequeathed to appellee.

       {¶3}   The decedent died on April 14, 2013. The will was admitted to probate.

Appellant filed a will contest action, alleging that the will was the direct result of undue

influence by appellee. Appellant alleged that due to her advanced age, the decedent

suffered from failing health and mental deficiencies at the time the will was executed.

       {¶4}   Appellee filed a motion for summary judgment, seeking dismissal of the

will contest. The trial court granted the motion. Appellant assigns three errors on

appeal to this Court:

       {¶5}   “I.    THE PROBATE COURT DEMONSTRATED CLEAR PREJUDICE IN

MAKING A PREDISPOSITION EARLY IN THE CASE.

       {¶6}   “II.   THE PROBATE COURT DEPRIVED APPELLANT DUE PROCESS

BY DEFENDING THE OBSTRUCTION OF DISCOVERY BY APPELLEE.

       {¶7}   “III. THE PROBATE COURT COMMITTED CLEAR ERROR BY

GRANTING A SUMMARY JUDGMENT AGAINST APPELLANT.”
Licking County, Case No. 14-CA-51                                                     3


                                                I.

      {¶8}   In his first assignment of error, appellant argues that the trial judge was

biased against him, making a predisposition on the merits of appellant’s case prior to

the presentation of any evidence.

      {¶9}   In Ross v. Belden Park Co., 5th Dist. Stark No. 2000CA00086, 2001 WL

1782650 (April 16, 2001), we addressed the proper proceeding for a litigant to follow

when claiming that a judge is biased or prejudiced:

                    In cases in the courts of common pleas, the Chief

             Justice of the Supreme Court of Ohio has exclusive

             jurisdiction to determine a claim that a trial judge is biased or

             prejudiced. Jones v. Billingham (1995), 105 Ohio App.3d 8,

             11. Common pleas litigants in this type of situation must

             bring any challenge to the trial judge's objectivity by way of

             the procedure set forth in R.C. 2701.03. See In re Baby Boy

             Eddy (Dec. 6, 1999), Fairfield App. No. 99CA22, unreported,

             citing In re Miller (July 16, 1999), Montgomery App. No.

             17592, unreported, at 2. Since only the Chief Justice or his

             designee may hear a disqualification matter, a court of

             appeals is without authority to void the judgment of a trial

             court because of bias or prejudice of the judge. Beer v.

             Griffith (1978), 54 Ohio St.2d 440, 441-42.
Licking County, Case No. 14-CA-51                                                       4


       {¶10} Appellant failed to follow the proper proceeding to seek recusal or

disqualification of the trial judge pursuant to R.C. 2701.03, and cannot now claim that

the judge was improperly biased or prejudiced against his case.

       {¶11} The first assignment of error is overruled.

                                                II.

       {¶12} In his second assignment of error, appellant argues that the court erred in

the regulation of discovery.

       {¶13} In the regulation of discovery, the trial court has discretionary power and

its decisions will not be overturned absent an abuse of that discretion. Mauzy v. Kelly

Servs., Inc., 75 Ohio St.3d 578, 592, 664 N.E.2d 1272 (1996); State ex rel. Daggett v.

Gessaman, 34 Ohio St.2d 55, 57, 295 N.E.2d 659 (1973). An appellate court reviews a

claimed error relating to a discovery matter under an abuse-of-discretion standard.

Lightbody v. Rust, 137 Ohio App.3d 658, 663, 739 N.E.2d 840 (8th Dist.2000); Trangle

v. Rojas, 150 Ohio App.3d 549, 782 N.E.2d 617, 2002–Ohio–6510 (8th Dist.). Under

this standard, reversal is warranted only where the trial court's attitude was arbitrary,

unreasonable or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450

N.E.2d 1140 (1983).

       {¶14} Appellant argues that appellee filed a late response to his discovery

request, and filed the response only after appellant filed a motion to compel. Appellant

argues that appellee’s responses to discovery were incomplete and/or perjured. The

record does not support appellant’s claims that appellee’s responses were incomplete

or perjured. On the state of the record in the instant case, we cannot find that the trial

court abused its discretion in regulation of discovery.
Licking County, Case No. 14-CA-51                                                   5


       {¶15} The second assignment of error is overruled.

                                                 III.

       {¶16} Appellant argues that the court erred in granting appellee’s motion for

summary judgment.

       {¶17} Summary judgment proceedings present the appellate court with the

unique opportunity of reviewing the evidence in the same manner as the trial court.

Smiddy v. The Wedding Party, Inc., 30 Ohio St.3d 35, 36 (1987). As such, we must

refer to Civ. R. 56(C) which provides in pertinent part:

                     Summary Judgment shall be rendered forthwith if the

              pleadings, depositions, answers to interrogatories, written

              admissions, affidavits, transcripts of evidence, and written

              stipulations of fact, if any, timely filed in the action, show that

              there is no genuine issue as to any material fact and that the

              moving party is entitled to judgment as a matter of law. No

              evidence or stipulation may be considered except as stated

              in this rule. A summary judgment shall not be rendered

              unless it appears from the evidence or stipulation, and only

              from the evidence or stipulation, that reasonable minds can

              come to but one conclusion and that conclusion is adverse

              to the party against whom the motion for summary judgment

              is made, that party being entitled to have the evidence or

              stipulation construed most strongly in the party’s favor.
Licking County, Case No. 14-CA-51                                                       6


      {¶18} Pursuant to the above rule, a trial court may not enter summary judgment

if it appears a material fact is genuinely disputed.    The party moving for summary

judgment bears the initial burden of informing the trial court of the basis for its motion

and identifying those portions of the record that demonstrate the absence of a genuine

issue of material fact. The moving party may not make a conclusory assertion that the

non-moving party has no evidence to prove its case. The moving party must specifically

point to some evidence which demonstrates that the moving party cannot support its

claim. If the moving party satisfies this requirement, the burden shifts to the non-moving

party to set forth specific facts demonstrating that there is a genuine issue of material

fact for trial. Vahila v. Hall, 77 Ohio St.3d 421, 429, 1997-Ohio-259, citing Dresher v.

Burt, 75 Ohio St.3d 280, 1996-Ohio-107.

      {¶19} In contesting the will, appellant argued that the decedent was not mentally

sound at the time she executed said will, and argued that appellee exerted undue

influence over the decedent regarding the will.

      {¶20} The burden of proof in determining testamentary capacity is on the party

contesting the will. Kennedy v. Walcutt, 118 Ohio St. 442, 161 N.E. 336, paragraph six

of the syllabus (1928). R.C. 2107.74 creates a presumption of the validity of a will, and

included in this presumption is that the testator was of sound mind and possessed

testamentary capacity to execute the will. Doyle v. Schott, 65 Ohio App.3d 92, 94, 582

N.E.2d 1057(1989).

                     Testamentary 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
Licking County, Case No. 14-CA-51                                                     7


             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.’

             Birman v. Sproat, 47 Ohio App.3d 65, 67–68, 546 N.E.2d

             1354 (1988), quoting Niemes v. Niemes, 97 Ohio St. 145,

             119 N.E. 503, paragraph four of the syllabus (1917).

      {¶21} It is not enough to show that the testator had deteriorating health, even if

the testator suffered from poor medical health at the time the documents were

executed. Appellant must also show that the health decline actually affected the

testator's capacity to execute the will. Martin v. Dew, 10th Dist. No. 03AP–734, 2004-

Ohio-2520, 2004 WL 1109562, ¶ 19.

      {¶22} In West v. Henry, 173 Ohio St. 498, 501–502, 20 O.O.2d 119, 184 N.E.2d

200 (1962), the Ohio Supreme Court held the following concerning undue influence:

                    General influence, however strong or controlling, is

             not undue influence unless brought to bear directly upon the

             act of making the will. If the will or codicil, as finally

             executed, expresses the will, wishes and desires of the

             testator, the will is not void because of undue influence.

                    The essential elements of undue influence are a

             susceptible testator, another's opportunity to exert it, the fact

             of improper influence exerted or attempted, and the result

             showing the effect of such influence.
Licking County, Case No. 14-CA-51                                                       8


                     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.

                     It is well stated, as follows, in 94 C.J.S. Wills § 224, p.

             1074:

                     The fact that the will of the testator of admitted

             testamentary capacity disposes of his property in an

             unnatural manner, unjustly, or unequally, and however much

             at variance with expressions by the testator concerning

             relatives or the natural objects of his bounty, does not

             invalidate the will, unless undue influence was actually

             exercised on the testator. (Emphasis omitted.)

      {¶23} Accordingly, a finding of undue influence requires: (1) a susceptible

testator, (2) another's opportunity to exert undue influence on the testator, (3) improper

influence exerted or attempted, and (4) a result showing the effect of such influence.
Licking County, Case No. 14-CA-51                                                        9

Redman v. Watch Tower Bible & Tract Soc. of Pennsylvania, 69 Ohio St.3d 98, 101,

630 N.E.2d 676 (1994).

       {¶24} In support of his motion for summary judgment, appellee filed an affidavit

of the decedent’s family physician. Dr. David Born averred that he consulted with the

decedent both before and after she executed the will, and at no time did she appear to

be incapable of caring for herself or handling her own affairs. He further averred that

she never spoke to him regarding excessive pressure or stress caused by appellee, but

she did indicate that appellant attempted to obstruct or prevent her marriage to

appellee, which caused her excessive strain and stress prior to her wedding.

       {¶25} Appellee further supported his motion with an affidavit of Attorney Richard

Brindley, who witnessed the signing of the will in his office.       He averred that he

questioned the decedent to ascertain that she knew she was signing a will, that she

understood the effect of her signing a will, that she was disposing of all her property not

otherwise dealt with, that she knew who her family members were and that she was

providing for them as she deemed appropriate, and that she was signing the will of her

own free will.   He stated that he believed she had testamentary capacity and was

signing the will free of undue influence. Attorney David Morrison likewise signed an

affidavit stating that he witnessed the signing of the will, that Attorney Brindley asked

the decedent a series of questions to determine testamentary capacity and that she was

acting of her own free will, that she answered such questions appropriately, and that he

believed her to have testamentary capacity and to have signed the will free of coercion

or undue influence.
Licking County, Case No. 14-CA-51                                                      10


      {¶26} In response, appellant filed an affidavit of Judy Cartnal, a neighbor of the

decedent, in which she stated that another neighbor told her that appellee was pushing

the decedent to change her will. Mary Teter, a friend of the decedent, averred that she

found it strange that after years of being single, the decedent met and married a man

from Australia who was 17 years younger, and the affiant believed there were too many

questions concerning his past. She stated that she believed appellee was isolating the

decedent and used her to get into the United States and control her assets. Marjorie

Haymen, another friend of the decedent, averred that the decedent’s behavior changed

after her marriage, and the decedent talked about appellee changing things in her life,

including buying a new car, changing her will, and removing appellant from her life.

      {¶27} Appellant presented no evidence to refute the testimony of Dr. Born and

the witnesses to the signing of the will that the decedent had testamentary capacity at

the time she signed the will. Further, while appellant presented evidence that after her

marriage, appellee encouraged the decedent to change her will, there was no evidence

presented to refute the testimony of the witnesses to the signing of the will that she

signed the will free of coercion or undue influence.       The evidence presented by

appellant does not demonstrate that the will as finally executed failed to express the

wishes and desires of the decedent.

      {¶28} The third assignment of error is overruled.
Licking County, Case No. 14-CA-51                                      11


      {¶29} The judgment of the Licking County Common Pleas Court, Probate

Division, is affirmed. Costs are assessed to appellant.

By: Baldwin, J.

Wise, P.J. and

Delaney, J. concur.
