[Cite as Gustafson v. Miller, 2015-Ohio-5515.]


                                        COURT OF APPEALS
                                       PERRY COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

FRED GUSTAFSON, AS EXECUTOR                         JUDGES:
OF THE ESTATE OF HELEN                              Hon. William B. Hoffman, P.J.
GUSTAFSON, DECEASED                                 Hon. Patricia A. Delaney, J.
                                                    Hon. Craig R. Baldwin, J.
        Plaintiff-Appellant
                                                    Case No. 15-CA-00008
-vs-

JOYCE MILLER, ET AL.                                OPINION

        Defendants-Appellees




CHARACTER OF PROCEEDING:                         Appeal from the Perry County Court of
                                                 Common Pleas, Probate Division, Case No.
                                                 20121101-1


JUDGMENT:                                        Affirmed in part; Reversed in part and
                                                 Remanded

DATE OF JUDGMENT ENTRY:                          December 30, 2015

APPEARANCES:

For Plaintiff-Appellant                          For Defendants-Appellees

SCOTT A. CAMPBELL                                MICHAEL L. CLOSE
JERRY VANDE WERKEN                               MARK A. GLUMAC
STEPHANIE M. CHMIEL                              CYNTHIA B. ROBERTS
Thompson Hine LLP                                DALE D. COOK
41 South High Street, Suite 1700                 Isaac Wiles Burkholder & Teetor, LLC
Columbus, Ohio 43215                             Two Miranova Place, Suite 700
                                                 Columbus, Ohio 43215
Perry County, Case No. 15-CA-00008                                                      2

Hoffman, P.J.


         {¶1}   Plaintiff-appellant Fred Gustafson as Executor of the Estate of Helen

Gustafson, deceased (“Gustafson”) appeals the March 4, 2015 Judgment Entry/Order

entered by the Perry County Court of Common Pleas, Probate Division, which granted

summary judgment in favor of defendants-appellees Joyce Miller, Gus Transport, Inc.,

and Pine Lakes II, LLC.

                            STATEMENT OF THE CASE AND FACTS

         {¶2}   Helen Gustafson (“Decedent”) passed away on May 10, 2012, survived by

three adult children, Fred Gustafson1, Joyce Miller (“Miller”), and David Gustafson.

Decedent’s husband and the parties’ father passed away in 1994. Fred Gustafson was

appointed Executor of Decedent’s estate (“the Estate”). The Estate was filed in Perry

County Probate Court on July 3, 2012.

         {¶3}   On February 14, 2014, Gustafson filed a Complaint against Appellees in the

Perry County Court of Common Pleas, Probate Division, alleging concealment through

fraud and undue influence. The Complaint sought declaratory and injunctive relief as well

as rescission and an accounting. The Complaint also sought recovery of five estate

assets or the proceeds thereof: real property located at 11350 New Salem Road,

Thornville, Ohio (“the Homestead”); Gus Transport and the FedEx trucking routes; funds

from Decedent’s bank accounts totaling $201,600.00; Shareholder Loan in the amount of

$270,032.00 from Decedent to Gus Transport; and an Allstate Insurance check in the

amount of $15,000.




1   We shall use “Fred Gustafon” when referring to him in his individual capacity.
Perry County, Case No. 15-CA-00008                                                      3


       {¶4}   Upon completion of discovery, Appellees filed a motion for summary

judgment on February 2, 105. Gustafson filed his memorandum in opposition on March

4, 2015.

       {¶5}   A review of the record reveals the following:

       {¶6}   In 1985, after years of working as an independent contractor for a number

of trucking companies, Miller began her own trucking company, Pine Trails Trucking.

Subsequently, Miller convinced her father to start his own trucking company, Little Pine

Trucking, which ultimately became Gus Transport.2 Both Pine Trails Trucking and Gus

Transport had routes with FedEx. Miller handled the financial affairs of her father’s

business from the company’s inception. Miller made all the arrangements with FedEx

following her father’s death to continue doing business with Decedent as the owner of

Gus Transport.

       {¶7}   Decedent and Miller executed an operating agreement for Helen Gustafson

LLC, which became effective on July 18, 2000. Miller was named the manager of the

LLC.   Helen Gustafson, LLC, was the company through which Decedent’s trucking

business ran. Years later, although the reason for doing so is not clear from the record,

Decedent executed an operating agreement for Helen Gustafson II, LLC, which became

effective November 7, 2005. Decedent was the only member and the manager of the

LLC. Helen Gustafson II, LLC replaced Helen Gustafson, LLC.

       {¶8}   On January 8, 2004, Decedent executed a Durable Power of Attorney,

naming Miller as her attorney in fact. Sometime in 2004, Decedent transferred her interest


2 Gus Transport, Inc. was incorporated on September 3, 2010, due to changes in FedEx
business practices. We shall refer to Little Pine Trucking as Gus Transport for the
remainder of this Opinion.
Perry County, Case No. 15-CA-00008                                                      4


in two of her four FedEx truck routes to Miller. According to Miller, Decedent did this in

appreciation for Miller’s taking care of the business.

       {¶9}   Miller executed an operating agreement for Pine Lake II, LLC, which

became effective on November 7, 2005. Miller was the only member and the manager

of Pine Lake II. On June 18, 2006, Decedent as the trustee of the Helen Gustafson Living

Trust executed a quit claim deed conveying the Homestead from the Helen Gustafson

Living Trust to Pine Lake II. On June 21, 2006, Decedent recorded a Statement of

Reason for Exemption of Real Property and the Quit Claim Deed with the Perry County

Recorder’s Office. In support of the Statement of Reason for Exemption, Decedent

attached her affidavit. Therein, Decedent averred she formed Pine Lake II, LLC, of which

she was the sole member, and was conveying the property from her Trust to her LLC.

The transfer was recorded on June 29, 2006. Decedent conveyed the property in order

to protect the Homestead from a prejudgment attachment by the State of Ohio pending

an action to recover premiums paid by the Bureau of Worker’s Compensation. Decedent

continued to live at the Homestead until her death. All taxes and expenses related to the

Homestead were paid out of Decedent’s bank accounts.

       {¶10} In January, 2009, Miller and Decedent entered into a five year lease

agreement whereby Decedent leased two tractor trailers from Miller. According to Miller,

Decedent needed to purchase two new tractor trailers, but could not obtain a loan to do

so. Miller agreed to purchase the vehicles, which Decedent leased at a monthly rate

equal to the monthly payments on the vehicles.

       {¶11} The tax return for Gus Transport from the 2011 tax year reveals a

$272,032.00 shareholder loan from Decedent. The date of the original loan is unknown.
Perry County, Case No. 15-CA-00008                                                       5


At the end of 2012, the amount owing to Decedent on the loan was $201,640.00. At the

end of 2013, the amount dropped to $51,478.00. No payments on the loan were made

to the Estate. Miller claimed no knowledge of the loan, but subsequently testified no

payments on the loan were made to Decedent before she died.

       {¶12} On January 2, 2012, Miller and Pine Trails Transportation, Inc., her trucking

business, entered into a stock purchase agreement with Simple Transport, Inc. and Chad

Turner, for the purchase price of $2.2 million.

       {¶13} Shortly before Decedent’s death, it was discovered certain jewelry

belonging to Decedent was missing. According to Miller, Decedent intended to give the

jewelry to Miller’s daughter, Dawn. On May 11, 2012, Miller, on behalf of Decedent, filed

a claim for the missing jewelry with Allstate, Decedent’s homeowner’s insurer. Allstate

issued a check to Decedent on May 21, 2012, in the amount of $15,000, as payment of

the claim. Miller cashed the check, endorsing it “Joyce Miller, Executor”, on June 2, 2012.

Miller testified she tendered the money to Gustafson, but he insisted the money belonged

to Dawn and Miller should give the money to her daughter.

       {¶14} As stated, supra, Decedent passed away on May 10, 2012. Miller testified

she learned she was the owner of the Homestead shortly before Decedent’s death, but

was unable to discuss the situation with Decedent due to Decedent’s physical and mental

state at the end of her life. Fred Gustafson, Miller, and David Gustafson met with Attorney

David Lowe on May 17, and June 6, 2012. The three agreed Attorney Lowe could

represent each of them. At the second meeting, the siblings signed a document captioned

“GUS TRANSPORT, INC. – Action by Consent of Family Members”, agreeing Miller was

the sole and only shareholder of Gus Transport.       Miller gave up her right to contest
Perry County, Case No. 15-CA-00008                                                     6


Decedent’s Will. Also at the second meeting, Miller gave Fred Gustafson an option

agreement to purchase the Homestead from Pine Lake II, LLC for $150,000. Fred

Gustafson was given six months to exercise the option. Fred Gustafson never exercised

the option.

       {¶15} On November 20, 2013, Miller executed an Agreement for Purchase of Real

Estate with an individual by the name of George Cenky for the sale of the Homestead for

the sum of $250,000.

       {¶16} Via Judgment Entry/Order issued March 4, 2015, the trial court granted

summary judgment in favor of Miller on all of Gustafson’s claims. The trial court found

the allegations set forth in the Complaint were not supported by the evidence. The trial

court further found no evidence of fraud or undue influence based upon the discovery

documents and exhibits presented. With respect to Gus Transport, the trial court

specifically found the parties entered into a consent agreement in which they each agreed

Miller would be the sole shareholder of the company. The trial court concluded there was

no evidence Miller fraudulently obtained Gus Transport. The trial court also noted the

parties agreed there would be no litigation concerning Gus Transport. With respect to the

transfers of money, the trial court explicitly denied the allegations the money was

transferred illegally. The trial court remarked Decedent appeared to be competent and

had Miller named on the bank accounts as a joint owner. The trial court added from the

evidence it appeared Decedent wanted it known she permitted Miller to have access to

the bank accounts.

       {¶17} It is from this judgment entry Gustafson appeals, raising the following

assignments of error:
Perry County, Case No. 15-CA-00008                                                         7


       {¶18} “I. THE TRIAL COURT ERRED IN HOLDING THAT EVIDENCE OF FRAUD

OR UNDUE INFLUENCE IS A NECESSARY ELEMENT AS TO ALL OF APPELLANT’S

CLAIMS, INCLUDING HIS STATUTORY CONCEALMENT CLAIM FOR PROPERTY

TAKEN POST-DEATH FROM THE ESTATE.

       {¶19} “II. THE TRIAL COURT ERRED IN GRANTING DEFENDANTS-

APPELLEES SUMMARY JUDGMENT.”

                                                 I

       {¶20} In the first assignment of error, Gustafson maintains the trial court erred in

holding evidence of fraud and undue influence were necessary elements of all of the

claims including the statutory claim for concealment relative to property taken from the

Estate post-death. We agree.

       {¶21} In its Judgment Entry/Order filed March 4, 2015, the trial court specifically

stated it “finds no evidence of fraud or undue influence based upon the documents and

exhibits provided to the court.” Id. at 2. The trial court proceeded to dismiss all of

Gustafson’s claims, including his claim for concealment pursuant to R.C. 2109.50.

       {¶22} Pursuant to R.C. 2109.50, an executor of an estate may file a complaint in

the probate court “against any person suspected of having concealed, embezzled, or

conveyed away or of being or having been in the possession of any moneys * * * of the

estate[.]” “When passing on a complaint made under section 2109.50 of the Revised

Code, the probate court shall determine, by the verdict of a jury if either party requires it

or without if not required, whether the person accused is guilty of having concealed,

embezzled, conveyed away, or been in the possession of moneys, chattels, or choses in

action of the trust estate. R.C. 2109.52 (Emphasis added).
Perry County, Case No. 15-CA-00008                                                           8


       {¶23} R.C. 2109.52 does not require the complaining party to establish fraud or

undue influence. “[T]he inquiry under R.C. 2109.50 focuses on the ownership of the asset

and whether possession of the asset is being impermissibly concealed or withheld from

the estate.” Wozniak v. Wozniak (1993), 90 Ohio App.3d 400, 407, 629 N.E.2d 500.

       {¶24} We find the trial court erred in dismissing Gustafson’s claim for concealment

based upon its finding Gustafson failed to prove fraud or undue influence.

       {¶25} Gustafson’s first assignment of error is sustained.

                                                  II

       {¶26} In his second assignment of error, Gustafson contends the trial court erred

in granting summary judgment in favor of Miller.

       {¶27} Civ. R. 56 states in pertinent part:

       {¶28} “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 of 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 mostly strongly in the party's favor. A summary judgment,

interlocutory in character, may be rendered on the issue of liability alone although there

is a genuine issue as to the amount of damages.”
Perry County, Case No. 15-CA-00008                                                           9


       {¶29} A trial court should not enter a summary judgment if it appears a material

fact is genuinely disputed, nor if, construing the allegations most favorably towards the

non-moving party, reasonable minds could draw different conclusions from the

undisputed facts. Hounshell v. Am. States Ins. Co., 67 Ohio St.2d 427, 424 N.E.2d 311

(1981). The court may not resolve any ambiguities in the evidence presented. Inland

Refuse Transfer Co. v. Browning–Ferris Inds. of Ohio, Inc., 15 Ohio St.3d 321, 474 N.E.2d

271 (1984). A fact is material if it affects the outcome of the case under the applicable

substantive law. Russell v. Interim Personnel, Inc., 135 Ohio App.3d 301, 733 N.E.2d

1186 (6th Dist.1999).

       {¶30} When reviewing a trial court's decision to grant summary judgment, an

appellate court applies the same standard used by the trial court. Smiddy v. The Wedding

Party, Inc., 30 Ohio St.3d 35, 506 N.E.2d 212 (1987). This means we review the matter

de novo. Doe v. Shaffer, 90 Ohio St.3d 388, 2000–Ohio–186, 738 N.E.2d 1243.

       {¶31} The party moving for summary judgment bears the initial burden of

informing the trial court of the basis of the motion and identifying the portions of the record

which demonstrate the absence of a genuine issue of fact on a material element of the

non-moving party's claim. Drescher v. Burt, 75 Ohio St.3d 280, 662 N.E.2d 264 (1996).

Once the moving party meets its initial burden, the burden shifts to the nonmoving party

to set forth specific facts demonstrating a genuine issue of material fact does exist. Id.

The non-moving party may not rest upon the allegations and denials in the pleadings, but

instead must submit some evidentiary materials showing a genuine dispute over material

facts. Henkle v. Henkle, 75 Ohio App.3d 732, 600 N.E.2d 791 (12th Dist.1991).
Perry County, Case No. 15-CA-00008                                                      10


      {¶32} Gustafson challenges the trial court’s decision with respect to the five assets

of the Estate or the proceeds thereof which were the basis of the Complaint: the

Homestead; Gus Transport and the FedEx trucking routes; funds from Decedent’s bank

accounts totaling $201,600.00; the Shareholder Loan in the amount of $270,032.00 from

Decedent to Gus Transport; and an Allstate Insurance check in the amount of $15,000.

We shall address each in turn.

                                      THE HOMESTEAD

      {¶33} Gustafson contends the trial court erred in granting summary judgment in

favor of Miller on the issue of the ownership of the Homestead. Specifically, Gustafson

maintains the evidence established at the time of her death Decedent was the owner of

Pine Lake II and the Homestead. We disagree.

      {¶34} We find the evidence establishes Miller was the owner of Pine Lake II.

Exhibit 107 attached to the Deposition of Attorney Christopher Minnillo is the Operating

Agreement of Pine Lake II, LLC. The sole member and manager of Pine Lakes II is Miller.

Upon the recording of the quit claim deed on June 29, 2006, which conveyed the property

from Decedent’s Trust to Pine Lake II, Miller became the owner of the Homestead. The

fact Decedent provided misinformation in her affidavit in support of the Statement of

Reason for Exemption does not change the legal ownership of the Homestead.

      {¶35} Accordingly, we find the trial court did not err in granting summary judgment

in favor of Miller on the issue of the ownership of the Homestead.

                                   GUS TRANSPORT, INC.

      {¶36} Gustafson argues the trial court erred in granting summary judgment in

favor of Miller on the issue of the ownership of Gus Transport. We disagree.
Perry County, Case No. 15-CA-00008                                                    11


      {¶37} At the time of her death, Decedent was the sole owner of Gus Transport.

Fred Gustafson, Miller, and David Gustafson met with Attorney Lowe on two occasions

following Decedent’s death. During these meetings, the siblings specifically discussed

Gus Transport and came to an agreement which Attorney Lowe reduced to writing, to wit:

the “GUS TRANSPORT, INC. – Action by Consent of Family Members” document.

Pursuant to this consent agreement, Miller was named the sole and only shareholder of

Gus Transport. Fred Gustafson, Miller, and David Gustafson executed the consent

agreement. We find there is no evidence Miller fraudulently obtained Gus Transport.

Fred Gustafson signed the consent agreement by his own volition. Beneficiaries under a

will may by agreement between and amongst themselves, make a disposition of property

otherwise than as directed by the testator. See, Taylor v. Connell (1971), 26 Ohio App.

2d 253, 257; Chisholm v. Chisholm (1950) 94 N.E. 2d 705, 706.

      {¶38} Further, despite Gustafson’s claim Attorney Lowe did not advise the siblings

of their potential claims against one another, Attorney Lowe had each sibling sign a

Consent to Multiple Representation letter in which he advised the siblings to carefully

consider the variety of issues which potentially could arise from the multiple

representation.

      {¶39} Accordingly, we find the trial court did not err in granting summary judgment

in favor of Miller on the issue of the ownership of Gus Transport.

                                        STOLEN CASH

      {¶40} Gustafson further asserts the trial court erred in granting summary judgment

in favor of Miller on the issue of the funds Miller transferred from Decedent’s bank

accounts to her own bank accounts. We disagree.
Perry County, Case No. 15-CA-00008                                                     12


       {¶41} In 2004, eight years before her death, Decedent executed a power of

attorney, granting Miller the authority to act on her behalf. This document gave Miller

broad and extensive powers to manage Decedent’s affairs. Decedent also had Miller

place her name on joint bank accounts. The evidence presented supports the trial court’s

determination Decedent wanted Miller to have access to the monies in her bank accounts.

       {¶42} Accordingly, we find the trial court did not err in granting summary judgment

in favor of Miller on the issue of the money transfers.

                                       ALLSTATE CHECK

       {¶43} On May 11, 2012, the day after Decedent’s death, Miller on behalf of

Decedent filed a claim for missing jewelry with Allstate. Allstate issued a check to

Decedent on May 21, 2012, in the amount of $15,000, as payment of the claim. Miller

deposited the check, endorsing it “Joyce Miller, Executor”, on June 2, 2012. Miller

testified a bank representative informed her to endorse the check as she did.

       {¶44} We find Miller’s endorsement of the check was improper. Miller’s power of

attorney terminated upon Decedent’s death; therefore, she had no authority to cash the

Allstate check. The Allstate check was an asset of the Estate and a genuine issue of

material fact exists as to whether Miller improperly withheld that asset.

       {¶45} We find the trial court failed to address this asset in its judgment entry

granting summary judgment in favor of Miller. Accordingly, we remand the matter to the

trial court to rule on this issue.

                                     SHAREHOLDER LOAN

       {¶46} Sometime prior to 2011, Decedent made a shareholder loan to Gus

Transport in excess of $270,000.00. The date of the original loan is unknown. At the end
Perry County, Case No. 15-CA-00008                                                        13


of 2012, the amount owing to Decedent on the loan was $201,640.00. At the end of 2013,

the amount dropped to $51,478.00. No payments on the loan were made to the Estate.

Miller claimed no knowledge of the loan, but did testify no payments on the loan were

made to Decedent before she died.

         {¶47} We find a genuine issue of material fact exists as to whether Miller or Gus

Transport did or did not make the shareholder loan payments to the Estate. Because

Miller is the sole shareholder of Gus Transport and unable to explain why the amount due

on the loan dropped despite no payments being made to Decedent or the Estate, we find

there are sufficient disputed facts to prevent summary judgment in favor of Miller on this

issue.

         {¶48} Based upon the foregoing, we vacate the trial court’s decision with respect

to the shareholder loan, and remand the matter for further proceedings.

                                CROSS-ASSIGNMENT OF ERROR

                                                  I

         {¶49} Within her Answer Brief, Miller sets forth a cross-assignment of error which

was “asserted pursuant to Ohio Revised Code Sec. 2505.22 in order to prevent reversal”.

Via Judgment Entry filed October 2, 2015, this Court determined the cross-assignment of

error was really an additional argument presented in opposition to Gustafson’s appeal,

and Miller was not required to file a Notice of Cross-Appeal.

         {¶50} Miller argues the trial court erred in failing to find Gustafson’s claims were

barred by the applicable statute of limitations. Miller submits Gustafson’s claims sound

in conversion and fraud; therefore, are governed by the four year statute of limitations set

forth in R.C. 2305.09.
Perry County, Case No. 15-CA-00008                                                  14


       {¶51} In his Complaint, Gustafson alleged Miller was wrongfully in possession of

assets of Decedent’s Estate. The fact Gustafson asserted Miller obtained the assets

through fraud or conversion does not change the true essence of the claims. Gustafson

claimed the assets were owned by Decedent at her death and rightfully belonged to the

Estate.

       {¶52} Accordingly, we do not find Gustafson’s claims barred by the four year

statute of limitations for conversion and fraud.

       {¶53} The judgment of the Perry County Court of Common Pleas, Probate

Division, is affirmed in part and reversed in part and the matter remanded for further

proceedings consistent with this Opinion and the law.

By: Hoffman, P.J.

Delaney, J. and

Baldwin, J. concur
