[Cite as Widdig v. Watkins, 2013-Ohio-3858.]


                                     COURT OF APPEALS
                                    SCIOTO COUNTY, OHIO
                                 FOURTH APPELLATE DISTRICT



MARY J. WIDDIG, as fiduciary of the               JUDGES:
the Estate of Nola Stapleton and as an            Hon. William B. Hoffman, P. J.
individual                                        Hon. Sheila G. Farmer, J.
                                                  Hon. John W. Wise, J.
        Plaintiff-Appellant

-vs-                                              Case No. 13-CA-3531

PATRICIA WATKINS, et al.

        Defendants-Appellees                      OPINION


                                                  RELEASED: 08/22/2013


CHARACTER OF PROCEEDING:                       Civil Appeal from the Court of Common
                                               Pleas, Case No. 09-CIH-214


JUDGMENT:                                      Affirmed


DATE OF JUDGMENT ENTRY:                        August 22, 2013


APPEARANCES:

For Plaintiff-Appellant                        For Defendants-Appellees

R. TRACY HOOVER                                T. KEVIN BLUME
621 Seventh Street                             9050 Ohio River Road
Portsmouth, Ohio 45662                         Wheelersburg, Ohio 45694
Scioto County, Case No. 13-CA-3531                                                     2

Wise, J.

        {¶1}   Appellant Mary J. Widdig appeals the decision of the Court of Common

Pleas, Scioto County, which granted a motion to dismiss and a motion for summary

judgment in favor of Appellees William Stapleton and Patricia Watkins, appellant’s niece

and nephew. The relevant facts leading to this appeal are as follows.

        {¶2}   Appellant Widdig is the daughter of Nola Stapleton, who died intestate in

2005.

        {¶3}   Nola also had a son, William Stapleton, who predeceased Nola in 2005.

William’s children, Appellee Patricia Watkins and James Stapleton, the niece and

nephew of Appellant Wittig, were named as defendants in a lawsuit filed by appellant,

individually and as the “fiduciary” for the estate of Nola, in the Scioto County Court of

Common Pleas, General Division, on July 16, 2009, for civil fraud, undue influence, and

interference with an expected inheritance. The gist of appellant’s lawsuit was that Nola

was elderly and suffering from dementia, and that Patricia and James unduly influenced

Nola to convey her property, including realty, to them.

        {¶4}   Appellees filed an answer and counter-claim on September 10, 2009.

        {¶5}   Appellees filed a motion to dismiss appellant’s complaint on December 2,

2011. Appellees then filed a motion for summary judgment on January 13, 2012.

Appellant filed responses to both motions.

        {¶6}   On March 13, 2012, the trial court granted summary judgment in favor of

appellees, and also granted the motion to dismiss, finding that the probate court had

exclusive jurisdiction over the case. The trial court also referenced the fact that the

present administrator of Nola’s estate, Attorney George L. Davis, who at some point in
Scioto County, Case No. 13-CA-3531                                                    3


the probate proceedings had replaced appellant as administrator, had not been brought

in as a party to the lawsuit.

       {¶7}   Following an initial appeal and remand for want of a final appealable

order, a nunc pro tunc entry, dismissing the counterclaim and adding Civ.R. 54(B)

language, was issued on January 23, 2013.

       {¶8}   On February 7, 2013, appellant filed a notice of appeal. She herein raises

the following two Assignments of Error:

       {¶9}   “I. THE TRIAL COURT ERRED WHEN IT GRANTED DEFENDANTS’

MOTION FOR SUMMARY JUDGMENT.

       {¶10} “II. THE TRIAL COURT ERRED WHEN IT GRANTED DEFENDANTS’

MOTION TO DISMISS.”

       {¶11} Appellant argues on appeal that the evidence of Nola’s medical and

mental health conditions did not warrant summary judgment in favor of defendants-

appellees, and that her case was cognizable in the common pleas division. We will

address the two assigned errors in reverse order.

                                              II.

       {¶12} In her Second Assignment of Error, appellant argues the trial court erred

in granting appellees’ motion to dismiss her complaint. We agree.

       {¶13} Because it presents a question of law, an appellate court reviews a trial

court's decision regarding a motion to dismiss independently and without deference to

the trial court's determination. Ogle v. Ohio Power Co, 180 Ohio App.3d 44, 2008-Ohio-

7042, ¶ 3 (additional citations omitted).
Scioto County, Case No. 13-CA-3531                                                        4



                          Subject Matter Jurisdiction (Civ.R. 12(B)(1))

       {¶14} The first issue we reach is whether the general division of the common

pleas court had jurisdiction to address appellant’s action for intentional interference with

expectancy of inheritance. In Firestone v. Galbreath (1993), 67 Ohio St.3d 87, 616

N.E.2d 202, the Ohio Supreme Court first set forth the essential elements of such a tort

claim as: (1) the existence of a plaintiff's expectancy of inheritance; (2) a defendant's

intentional interference with plaintiff's expectancy, (3) the defendant's tortious conduct

involving the interference, such as fraud, duress, or undue influence; (4) a reasonable

certainty that, but for the defendant's interference, the expectancy of inheritance would

have been realized; and (5) damage resulting from the interference. Id. at 88, 616

N.E.2d 202.

       {¶15} However, we note the Ohio Supreme Court in Firestone explicitly declined

to reach the issue of the “exhaustion of other possible remedies.” See id. at 88.

However, we have held that “a claim for intentional interference with expectancy of

inheritance may not be pursued if adequate relief is available to the plaintiff through

probate procedures ***.” Roll v. Edwards, 156 Ohio App.3d 227, 805 N.E.2d 162, 2004-

Ohio-767, ¶ 28. In other words, as the Tenth District Court of Appeals has determined,

“[b]efore pursuing an IIEI [intentional interference with an expected inheritance] claim, a

plaintiff must first exhaust all appropriate probate procedures.” Cunningham v.

Cunningham, Franklin App.No. 08AP–1049, 2009–Ohio–4648, ¶ 19. It is thus

incumbent that we consider whether appellant had an appropriate procedure available

in probate court to redress her claims against her niece and nephew.
Scioto County, Case No. 13-CA-3531                                                       5


       {¶16} “The probate court is a court of limited and special jurisdiction. It has only

the powers granted to it by statute.” Bishop v. Bishop, 188 Ohio App.3d 98, 934 N.E.2d

420, 2010-Ohio-2958, ¶ 11, citing Corron v. Corron (1988), 40 Ohio St.3d 75, 77, 531

N.E.2d 708, and Schucker v. Metcalf (1986), 22 Ohio St.3d 33, 34, 22 OBR 27, 488

N.E.2d 210. We cannot interpret the existence of plenary powers to enlarge the

statutory grant of jurisdiction to the probate division. See Oncu v. Bell (1976), 49 Ohio

App.2d 109, 110, 359 N.E.2d 712.

       {¶17} R.C. 2101.24(A)(1) states in pertinent part as follows:

       {¶18} “Except as otherwise provided by law, the probate court has exclusive

jurisdiction:

       {¶19} “(a) To take the proof of wills and to admit to record authenticated copies

of wills executed, proved, and allowed in the courts of any other state, territory, or

country. If the probate judge is unavoidably absent, any judge of the court of common

pleas may take proof of wills and approve bonds to be given, but the record of these

acts shall be preserved in the usual records of the probate court.

       {¶20} “(b) To grant and revoke letters testamentary and of administration;

       {¶21} “(c) To direct and control the conduct and settle the accounts of executors

and administrators and order the distribution of estates;

       {¶22} “***

       {¶23} “(i) To authorize the sale of lands, equitable estates, or interests in lands

or equitable estates, and the assignments of inchoate dower in such cases of sale, on

petition by executors, administrators, and guardians;
Scioto County, Case No. 13-CA-3531                                                      6


       {¶24} “(j) To authorize the completion of real property contracts on petition of

executors and administrators;

       {¶25} “(k) To construe wills;

       {¶26} “(l) To render declaratory judgments, including, but not limited to, those

rendered pursuant to section 2107.084 of the Revised Code;

       {¶27} “(m) To direct and control the conduct of fiduciaries and settle their

accounts;

       {¶28} “(n) To authorize the sale or lease of any estate created by will if the

estate is held in trust, on petition by the trustee;

       {¶29} “(o) To terminate a testamentary trust in any case in which a court of

equity may do so;

       {¶30} “(p) To hear and determine actions to contest the validity of wills;

       {¶31} “ ***

       {¶32} “(bb) To hear and determine applications for an order relieving an estate

from administration under section 2113.03 of the Revised Code;

       {¶33} “(cc) To hear and determine applications for an order granting a summary

release from administration under section 2113.031 of the Revised Code;

       {¶34} “(dd) To hear and determine actions relating to the exercise of the right of

disposition, in accordance with section 2108.90 of the Revised Code[.] * * *.”

       {¶35} Certainly, “*** Ohio courts have found that ‘one responsible for the

administration of an estate’ may bring a declaratory judgment action in the probate court

to determine the validity of transfers of property that would revert back to the estate if

the transfers were to be found invalid.” Lamar v. Washington, Allen App.No. 1-05-54,
Scioto County, Case No. 13-CA-3531                                                          7

2006-Ohio-1414, ¶ 15, citing Bobko v. Sagen (1989), 61 Ohio App.3d 397, 406-07, 572

N.E.2d 823. Appellees, in their response brief, maintain that appellant should have

pursued such a remedy in this case in the probate court, which has exclusive

jurisdiction for estate administration declaratory judgments, as set forth by this Court in

Grimes v. Grimes, 173 Ohio App.3d 537, 544, 879 N.E.2d 247, 2007-Ohio-5653.

However, our specific holding in Grimes on this point was that “[i]n a case where an

administrator of an estate questions the validity of certain inter vivos transfers that

involve property which would revert to the estate if the transfers are found invalid, the

action is related to the administration of the estate and is within the exclusive jurisdiction

of the probate court.” (Emphasis added.) Grimes at ¶ 19, quoting Mock v. Bowen,

Lucas App.No. L-91-210, 1992 WL 163959.

       {¶36} In the case sub judice, appellant filed her complaint in the general division

both “as fiduciary of the Estate of Nola Stapleton and as an individual.” Paragraph 12 of

the complaint alleges: “Plaintiff states that she has a personal interest as she would

receive 50% of any assets of the Estate of Nola Stapleton.” Although it appears

undisputed that appellant is no longer the fiduciary of the estate, we find her individual

claims are not outside the jurisdiction of the general division pursuant to Grimes.

Furthermore, as recognized by the Ohio Supreme Court, “generally speaking, the

probate division has no jurisdiction over claims for money damages arising from

allegations of fraud.” Schucker, supra, at 35. We therefore hold that dismissal by the

trial court, to the extent that it relied upon Civ.R. 12(B)(1), constituted error under the

circumstances of this case.
Scioto County, Case No. 13-CA-3531                                                        8



                                 Dismissal Under Civ.R. 12(B)(6)

       {¶37} Appellees’ motion to dismiss appellant’s complaint also invoked Civ.R.

12(B)(6), i.e., failure to state a claim upon which relief can be granted.

       {¶38} A trial court's decision to dismiss a plaintiff's complaint pursuant to Civ.R.

12(B)(6) presents a question of law that we review de novo. Allen v. Bryan, Hocking

App.No. 12CA15, 2013-Ohio-1917, ¶ 7, citing Perrysburg Twp. v. Rossford, 103 Ohio

St.3d 79, 2004–Ohio–4362, 814 N.E.2d 44, ¶ 5. When deciding a Civ.R. 12(B)(6)

motion to dismiss for failure to state a claim, trial courts must presume all factual

allegations in the complaint are true and make all reasonable inferences in favor of the

nonmoving party. State ex rel. Talwar v. State Med. Bd. of Ohio, 104 Ohio St.3d 290,

2004–Ohio–6410, 819 N.E.2d 654, ¶ 5. Dismissal is proper only if it appears from the

face of the complaint that the plaintiff can prove no set of facts that would entitle him or

her to relief. Johnson v. Microsoft Corp., 106 Ohio St.3d 278, 2005–Ohio–4985, 834

N.E.2d 791, ¶ 6.

       {¶39} We recognize that “[e]ven though Ohio Rules allow for notice pleading,

fraud is one of a limited number of theories that must be pled with specificity.” Koeck v.

Boyle, Athens App.Nos. 95CA1705, 96CA1731, 1997 WL 188778, citing Civ.R. 9(B). In

the case sub judice, the complaint alleges that appellees “acted in concert fraudulently

and with undue influence” to take Nola Stapleton’s property. Although the complaint is

somewhat problematic in that it sought to have certain assets or the value thereof

returned to Nola’s estate, appellant did allege therein that she was entitled to fifty

percent of Nola’s estate’s assets, and that damages in excess of $25,000.00 had been
Scioto County, Case No. 13-CA-3531                                                       9


incurred. Appellant also sought “all other relief which [the trial] court deems proper and

just.”

         {¶40} Upon review, we find appellant’s allegations under the criteria of Firestone

v. Galbreath were sufficient to withstand appellees’ 12(B)(6) motion under the

circumstances presented.

                              Failure to Join Necessary Party

         {¶41} Appellees also contend in response that appellant had failed to properly

name as a defendant Johnna Stapleton, the wife of Appellee James Stapleton, based

on Johnna’s purported dower interest. In support, appellees cite Young v. Wells, Gallia

App.Nos. 06-CA-6, 06-CA-7, 2007-Ohio-4568. However, that case involved a

declaratory judgment action stemming from a claim of an oral contract to purchase real

estate. The tort action filed by appellant in the case sub judice is distinguishable from a

declaratory judgment action. We therefore find appellant herein was not required to

name Johnna Stapleton as a party in the complaint for intentional interference with

expectancy of inheritance.

                                            Conclusion

         {¶42} Upon review, we hereby hold the trial court erred as a matter of law in

dismissing appellant’s complaint for intentional interference with expectancy of

inheritance.

         {¶43} Appellant’s Second Assignment of Error is sustained. However, we will

next turn to a review of the issue of summary judgment.
Scioto County, Case No. 13-CA-3531                                                      10



                                                I.

       {¶44} In her First Assignment of Error, appellant argues the trial court erred in

granting appellees’ motion for summary judgment. We disagree.

       {¶45} An appellate court reviews a trial court's decision on a motion for summary

judgment de novo. State ex rel. Rhodes v. Chillicothe, Ross App.No. 12CA3333, 2013-

Ohio-1858, ¶ 25, citing Smith v. McBride, 130 Ohio St.3d 51, 2011–Ohio–4674, 955

N.E.2d 954, ¶ 12. Accordingly, we afford no deference to the trial court's decision and

independently review the record to determine whether summary judgment is

appropriate. Harter v. Chillicothe Long–Term Care, Inc., Ross App. No. 11CA3277,

2012–Ohio–2464, ¶ 12; Grimes v. Grimes, Washington App.No. 08CA35, 2009–Ohio–

3126, ¶ 16.

       {¶46} Civ.R. 56(C) states 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. ***.”
Scioto County, Case No. 13-CA-3531                                                     11


        {¶47} The burden of showing that no genuine issue of material fact exists falls

upon the party who moves for summary judgment. Dresher v. Burt, 75 Ohio St.3d 280,

292–293, 662 N.E.2d 264 (1996). To meet this burden, the moving party must be able

to specifically point to the pleadings, depositions, answers to interrogatories, written

admissions, affidavits, transcripts of evidence, and written stipulations of fact, if any,

timely filed in the action, which affirmatively demonstrate that the nonmoving party has

no evidence to support the nonmoving party's claims. Id. Civ.R.56(C). If the moving

party fails to satisfy its initial burden, the motion for summary judgment must be denied.

Bohl v. Travelers Ins. Group, Washington App.No. 03CA68, 2005–Ohio–963, ¶ 17.

However, if the moving party has satisfied its initial burden, the nonmoving party then

has a reciprocal burden outlined in Civ.R. 56(E) to set forth specific facts showing that

there is a genuine issue for trial. Lauer v. Layco Enterprises, Inc., Washington App.No.

12CA40, 2013-Ohio-1916, ¶ 8 (internal citations omitted).

        {¶48} In response to appellee’s motion for summary judgment, appellant relied

upon two main sources of evidence: Nola’s medical records copies and appellant’s own

deposition taken November 28, 2011.1

        {¶49} In regard to the medical records, it is well-established that where such

material submitted in opposition is not sworn, certified, or put in evidence by way of

affidavit, it does not qualify as documentary evidence under Rule 56(C) and should not

be considered by the trial court. See Citizens Ins. Co. v. Burkes (1978), 56 Ohio App.2d

88, 95-96, 381 N.E.2d 963, citing Olverson v. Butler (1975), 45 Ohio App.2d 9, 340

N.E.2d 436. Appellant’s medical records regarding Nola, which chiefly consist of



1
    Appellant’s own deposition is the only one contained in the record before us.
Scioto County, Case No. 13-CA-3531                                                    12


photocopies of nurse’s notes from 2003 (two years before Nola died) and 2005, are not

supported by certification or affidavit.

       {¶50} Moreover, while appellant, in her deposition, was able to recollect some of

her interactions with Nola, appellant’s allegations against Appellees James and Patricia

almost exclusively consist of speculation and conjecture. For example, when asked to

document her claim that Patricia had taken $1,500.00 from Nola’s bank account,

appellant testified: “Well, there’s a withdraw [sic] on one of these pieces of paper. And

she was the only one that could have done it. Sonny was – my brother was gone. And

Mother [Nola] could not do this kind of stuff. So it had to be [Appellee] Patty. She was

the only one legally able to do it.” Widdig Depo. at 55. Appellant’s testimony charges

that appellees, after the summer of 2005, repeatedly rebuffed appellant’s attempts to

speak with Nola by telephone. Widdig Depo. at 52. But appellant was at best vague as

to whether she had personal knowledge of any incidents where appellees had acted

fraudulently or had exerted undue influence on Nola’s decisions about her property. For

example, when asked what Appellee James had done to obtain the deed to the house

in a fraudulent manner, appellant responded: “I think him [sic] and his sister got the

power-of-attorney to be able to take Mother [Nola] down there to the lawyer’s office and

have her sign these papers. *** I really don’t know what they did. ***” Widdig Depo. at

62, emphasis added. Appellant added: “*** Did I watch them? No. Mother, over the

years, would tell you everything. I mean, she didn’t have any problem with talking about

it. She did not like certain people of that family. *** “And so she would tell you when

they were mean to her or when they would take something, or whatever. They would

steal from her. She said they stole bedding and stuff all the time. I mean, every time
Scioto County, Case No. 13-CA-3531                                                  13


you went, it was something. So we don’t know whether they did or whether she thought

they did.” Tr. at 64.

       {¶51} Upon review, we conclude that no genuine issue of material fact exists

regarding appellant’s complaint for intentional interference with expectancy of

inheritance against appellees, based on allegations of fraud and undue influence, and

we therefore hold the trial court properly granted summary judgment in favor of

appellees in this matter.

       {¶52} Appellant’s First Assignment of Error is overruled.

       {¶53} For the reasons stated in the foregoing opinion, the decision of the Court

of Common Pleas, Scioto County, Ohio, is hereby affirmed.


By: Wise, J.

Hoffman, P. J., and

Farmer, J., concur.



                                            ___________________________________
                                            HON. JOHN W. WISE


                                            ___________________________________
                                            HON. WILLIAM B. HOFFMAN


                                            ___________________________________
                                            HON. SHEILA G. FARMER

JWW/ d 0729
Scioto County, Case No. 13-CA-3531                                           14


             IN THE COURT OF APPEALS FOR SCIOTO COUNTY, OHIO
                        FOURTH APPELLATE DISTRICT



MARY J. WIDDIG, as fiduciary of           :
The Estate of Nola Stapleton and          :
as an individual                          :
                                          :
       Plaintiff-Appellant                :
                                          :
-vs-                                      :         JUDGMENT ENTRY
                                          :
PATRICIA WATKINS, et al.                  :
                                          :
       Defendants-Appellees               :         Case No. 13-CA-3531




       For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Scioto County, Ohio, is affirmed.

       Costs assessed to appellant.




                                          ___________________________________
                                          HON. JOHN W. WISE


                                          ___________________________________
                                          HON. WILLIAM B. HOFFMAN


                                          ___________________________________
                                          HON. SHEILA G. FARMER
