[Cite as Johnson v. Johnson, 2017-Ohio-4153.]


                                      COURT OF APPEALS
                                     STARK COUNTY, OHIO
                                  FIFTH APPELLATE DISTRICT

REGINALD JOHNSON, ET AL.                           JUDGES:
                                                   Hon. Patricia A. Delaney, P.J.
        Plaintiffs-Appellants                      Hon. William B. Hoffman, J.
                                                   Hon. John W. Wise, J.
-vs-
                                                   Case No. 2016CA00184
ROBIN JOHNSON

        Defendant-Appellee                         OPINION




CHARACTER OF PROCEEDING:                        Appeal from the Stark County Court of
                                                Common Pleas, Probate Division, Case No.
                                                225072


JUDGMENT:                                       Affirmed

DATE OF JUDGMENT ENTRY:                         June 5, 2017

APPEARANCES:

For Plaintiffs-Appellants                       For Defendant-Appellee

TIMOTHY B. PETTORINI                            STANLEY R. RUBIN
SARA E. FANNING                                 437 Market Avenue North
Roetzel & Andress, LPA                          Canton, Ohio 44702
222 South Main Street
Akron, Ohio 44308
Stark County, Case No. 2016CA00184                                                     2

Hoffman, J.



      {¶1}    Plaintiffs-appellants Reginald Johnson, et al. appeal the September 12,

2016 Judgment Entry entered by the Stark County Court of Common Pleas, Probate

Division, which granted summary judgment in favor of Defendant-appellee Robin

Johnson.

                          STATEMENT OF THE FACTS AND CASE

      {¶2}    Appellants are the five adult children and three grandchildren of Fred

Johnson (“Decedent”). Appellee is Decedent’s second wife.

      {¶3}    Decedent executed his Last Will and Testament on June 3, 2010 (“the Will”).

Attorney Don Caplea prepared the Will at Decedent’s request. Pursuant to the terms of

the Will, Decedent appointed Appellee as Executor of his Estate, and bequeathed any

and all of his real property as well as the residual of the Estate to Appellee. Decedent

passed away on July 6, 2015, at the age of 88. Appellee applied to probate the Will,

which the trial court granted on September 17, 2015.

      {¶4}    On December 15, 2015, Appellants filed a will contest against Appellee,

challenging the validity of the Will. Appellants alleged Appellee exerted undue influence

upon Decedent to execute the Will. Appellee filed an answer and counterclaim. In her

counterclaim, Appellee asserted Appellants’ complaint was frivolous. Appellee filed a

motion for summary judgment on August 10, 2016. Appellants filed a memorandum in

opposition on August 26, 2016.

      {¶5}    The evidence presented during the summary judgment proceedings

established Appellants did not like Appellee. Appellee and Decedent met in the early
Stark County, Case No. 2016CA00184                                                    3


1980’s, and were married in June, 2002. Decedent was 35 years older than Appellee.

Appellee and Decedent were happily married, and cared for each other during periods of

health problems throughout their marriage.

       {¶6}   Appellants believed Appellee excluded them from decisions regarding

Decedent’s medical treatments, and failed to notify them when Decedent was

hospitalized. Appellants also thought Appellee controlled Decedent’s decisions regarding

his property and finances. Appellants further contended Appellee purchased two rental

properties with monies withdrawn from Decedent’s 401(k) plan and titled the properties

in only her name. In his Affidavit, Appellant Calvin Johnson, Decedent’s grandson,

averred Decedent was unaware of the purchases until he received a tax bill in the mail.

Affidavit of Calvin Johnson at para. 5(b). Appellant Calvin Johnson stated he witnessed

Decedent “become upset even irate at purchases made by [Appellee] without his

knowledge and consent.” Id. at para. 5. He added he observed Appellee improperly and

unduly influence Decedent to act in ways Decedent would not have acted otherwise. Id.

at para. 7.

       {¶7}   Appellant Reginald Johnson, Decedent’s son, had owned the home in which

Decedent and Appellee were residing. Deposition of Robin Johnson at 15. Appellant

Reginald Johnson indicated Appellee was not happy the residence was not in her and

Decedent’s names, and insisted Appellant Reginald Johnson transfer the house to them.

Deposition of Reginald Johnson at 14. Appellant Reginald Johnson recalled a telephone

conversation with Decedent during which he heard Appellee yelling in the background,

“Get the house. Get the house.” Id.    In their memorandum in opposition to summary

judgment, Appellants concluded this situation demonstrated Appellee influenced
Stark County, Case No. 2016CA00184                                                          4


Decedent to ensure the house was transferred and, if Decedent truly wanted the house

transferred, “it would have been unnecessary for [Appellee] to be in the background

yelling.” Plaintiffs’ Memorandum in Opposition to Defendant Robin Johnson’s Motion for

Summary Judgment at 8.

       {¶8}   Appellants also presented the Affidavit of Judge Frank Forchione. In his

Affidavit, Judge Forchione stated he prepared a last will and testament for Decedent “on

or around 2009”, while he was still in private practice. Affidavit of Judge Frank Forchione

at para. 3. Judge Forchione noted the will “included bequests to his children.” Id. Judge

Forchione did not retain a copy of the will. Id. at para. 4. He further stated, “If [Decedent]

would have requested that I prepare estate planning documents, including a Will, that

would have disinherited his children, I would have declined to prepare documents of that

nature due to his expressed feelings toward his children.” Id. at para. 6. The 2009 will

was not produced during discovery.

       {¶9}   In addition, Appellants attached a copy of Decedent’s 1974 last will and

testament in which Decedent devised and bequeathed his entire Estate to his children in

equal shares.

       {¶10} In her motion for summary judgment, Appellee stated Decedent wanted to

ensure she was taken care of after his death, and knew she would be unable to live on

her disability check. To ensure his wishes, Decedent executed the Will on June 3, 2010.

Attorney Don Caplea prepared the Will at Decedent’s request. Pursuant to the terms of

the Will, Decedent appointed Appellee as Executor of his Estate, and bequeathed any

and all of his real property as well as the residual of the Estate to Appellee. Attorney

Caplea and Decedent had been friends for approximately five years when Decedent
Stark County, Case No. 2016CA00184                                                      5


requested Caplea prepare the Will. Affidavit of Don Caplea at para. 4. Attorney Caplea

and Decedent remained friends until Decedent’s death. Id.        Attorney Caplea noted

Decedent had the capacity to sign the Will and Decedent was not under duress when

doing so. Id. at 6.

       {¶11} Via Judgment Entry filed September 12, 2016, the trial court granted

judgment in favor of Appellee. The trial court found Appellants failed to provide evidence

of undue influence of Decedent. The trial court explained the fact the parties did not get

along and Decedent bequeathed the majority of his Estate to Appellee, with whom he had

been involved for over thirty years, thirteen of which they were married, was insufficient

to establish undue influence. The trial court noted the evidence showed Decedent was

competent and made choices during his lifetime which benefited his wife. The trial court

added Appellants’ anecdotes and speculation regarding Decedent and Appellee’s

relationship did not create a genuine issue of material fact.       Thereafter, Appellee

dismissed her counterclaim pursuant to Civ. R. 41.

       {¶12} It is from the September 12, 2016 Judgment Entry Appellants appeal,

raising as their sole assignment of error:



              I. THE PROBATE COURT ERRED IN GRANTING SUMMARY

       JUDGMENT WHEN GENUINE ISSUES OF MATERIAL FACT EXISTED

       AS    TO       WHETHER    DEFENDANT-APPELLEE          EXERTED      UNDUE

       INFLUENCE UPON FRED JOHNSON, DECEASED, SO AS TO

       INVALIDATE THE LAST WILL AND TESTAMENT OF FRED JOHNSON
Stark County, Case No. 2016CA00184                                                         6


      AS BEING THE PRODUCT OF DEFENDANT-APPELLEE’S UNDUE

      INFLUENCE.



      Civ.R. 56(C) provides:



              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. * * * 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. * * *.



      {¶13} As an appellate court reviewing summary judgment issues, we must stand

in the shoes of the trial court and conduct our review on the same standard and evidence

as the trial court. Porter v. Ward, Richland App. No. 07 CA 33, 2007-Ohio-5301, 2007 WL

2874308, ¶ 34, citing Smiddy v. Wedding Party, Inc. (1987), 30 Ohio St.3d 35, 30 OBR

78, 506 N.E.2d 212. 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
Stark County, Case No. 2016CA00184                                                          7


record that demonstrate the absence of a genuine issue of material fact. The moving party

may not make a conclusory assertion that the nonmoving party has no evidence to prove

its case. The moving party must specifically point to some evidence that demonstrates

that the nonmoving party cannot support its claim. If the moving party satisfies this

requirement, the burden shifts to the nonmoving party to set forth specific facts

demonstrating that there is a genuine issue of material fact for trial. Vahila v. Hall (1997),

77 Ohio St.3d 421, 429, 674 N.E.2d 1164, citing Dresher v. Burt (1996), 75 Ohio St.3d

280, 662 N.E.2d 264. A fact is material when it affects the outcome of the suit under the

applicable substantive law. Russell v. Interim Personnel, Inc. (1999), 135 Ohio App.3d

301, 304, 733 N.E.2d 1186.

       {¶14} Appellants specifically assert the trial court erred in granting summary

judgment as genuine issues of material fact existed as to whether Decedent was a

susceptible testator and whether Appellee had the opportunity to exert undue influence

upon Decedent. We disagree.

       {¶15} A will which has been admitted to probate is presumed to have been made

free from restraint. Krischbaum v. Dillon (1991), 58 Ohio St.3d 58, 64, 567 N.E.2d 1291.

The contestants have the burden to prove undue influence. Id.

       {¶16} To invalidate a will, undue influence “must so overpower and subjugate the

mind of the testator as to destroy his free agency and make him express the will of another

rather than his own, and the mere presence of influence is not sufficient.” West v. Henry,

173 Ohio St. 498, 501, 184 N.E.2d 200 (1962). In addition, the “[u]ndue influence must

be present or operative at the time of the execution of the will resulting in dispositions

which the testator would not otherwise have made.” Id. Proof of undue influence requires:
Stark County, Case No. 2016CA00184                                                         8


(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. Id. at 510–511.

       {¶17} Appellants contend Decedent was a susceptible testator because he was

83 years old when he executed the Will, and was “in poor health around [that] time”.

Appellants’ mention of Decedent’s “poor health around [that] time” refers to his

hospitalization due to congestive heart failure, which occurred a year after he executed

the Will. Although Decedent was hospitalized for six weeks and spent four weeks in a

nursing home for rehabilitation, he made a full recovery. In his Affidavit, Attorney Caplea

averred Decedent was competent to sign the Will and he did not observe anything which

would indicate Appellee was attempting to exert influence over him. In addition, Appellant

Reginald Johnson acknowledged Decedent was mentally sharp in 2010. Deposition of

Reginald Johnson at 35. We find there is no evidence to support Appellants’ assertion

Decedent was a susceptible testator. Furthermore, we find the alleged incidents of undue

influence cited by Appellants do not establish Appellee “so overpower and subjugate the

mind of [Decedent] as to destroy his free agency and make him express the will of another

rather than his own”.

       {¶18} Based upon the foregoing, we find the trial court did not err in granting

summary judgment in favor of Appellee.

       {¶19} Appellants’ sole assignment of error is overruled.
Stark County, Case No. 2016CA00184                                        9


       {¶20} The judgment of the Stark County Court of Common Pleas, Probate

Division, is affirmed.

By: Hoffman, J.

Delaney, P.J. and

Wise, John, J. concur
