[Cite as Wisner v. Wisner, 2016-Ohio-5095.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                              HANCOCK COUNTY




WILLIAM E. WISNER,

        PLAINTIFF-APPELLANT,                             CASE NO. 5-15-31

        v.

JOHN WISNER, EXECUTOR OF
THE ESTATE OF BONNIE L. FISHER,
ET AL.,                                                  OPINION

        DEFENDANTS-APPELLEES.




                Appeal from Hancock County Common Pleas Court
                                 Probate Division
                           Trial Court No. 201141190A

                                     Judgment Affirmed

                             Date of Decision: July 25, 2016




APPEARANCES:

        Michael J. Malone for Appellant

        Thomas P. Kemp for Appellee
Case No. 5-15-31




ROGERS, J.

           {¶1} Plaintiff-Appellant, William E. Wisner (“Appellant”), appeals the

judgment of the Court of Common Pleas of Hancock County, Probate Division,

granting summary judgment in favor of Defendants-Appellees, John Wisner, as

the Executor of Bonnie L. Fisher’s estate (“the Executor”), Sharon Horvath, and

David Wisner (collectively “Appellees”). On appeal, Appellant argues that the

trial court erred in finding that (1) the doctrine of equitable estoppel does not apply

in a will contest action under R.C. 2107.76 and (2) he lacked standing to request

an accounting from the Executor, Fisher’s attorney-in-fact. For the reasons that

follow, we affirm the judgment of the trial court.

           {¶2} On February 12, 2015, Appellant filed a verified complaint in the

Court of Common Pleas of Hancock County, Probate Division, against Appellees,

Kim Fisher Towne, and Ohio University’s College of Fine Arts (“the College”)

contesting the validity of Fisher’s June 2012 Last Will and Testament (“the 2012

will”) and requesting an accounting from the Executor, Fisher’s attorney-in-fact.1

The complaint alleged:

                            FACTS COMMON TO ALL COUNTS

           ***



1
    Appellant voluntarily dismissed Towne as a party to the action on April 29, 2015.

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         3. On or about June 28, 2012, [Fisher] allegedly executed [the
         2012 will]. [The 2012 will] has been previously filed herein by [the
         Executor] * * *.

         ***

         5. [The 2012 will] acted so as to disinherit [Appellant] as a
         beneficiary of such Will.

         6. [The 2012 will] acted so as to disinherit [the College] as a
         beneficiary of such Will.

         ***

         8. On August 1, 2014, Michael J. Malone, Esq., as counsel for
         [Appellant] met with John Koehler, Esq., as counsel for [the
         Executor]. The scheduled meeting was held at the Findlay Inn to
         discuss the issue of the competency of [Fisher] at the time of the
         execution of [the 2012 will] and the impending statute of limitations.

         9. The discussion specifically relating to the fact that the usual
         time constraints of a will contest (limitation of action) would not
         permit [Appellant] to investigate the case with due diligence.
         Thereafter, [Appellant’s] counsel requested that the statutory period
         for a will contest be extended by agreement, and that HIPAA
         releases be provided by [the Executor] to permit [Appellant] pre-
         complaint discovery on the will contest case.

         10. Counsel for [Appellant] and [c]ounsel for [the Appellees]
         agreed that the statute would be extended, and that after due
         diligence by [Appellant], suit could be filed outside the statutory
         limitation of action.2

         11. Evidencing the agreement, counsel for the Executor * * * had
         the Executor execute HIPAA releases in favor of [Appellant]. * * *



2
  Although the verified complaint states that “[c]ounsel for Plaintiff and [c]ounsel for Defendant agreed that
the statute would be extended * * * ”, there is no evidence in the record that John Koehler represented
anyone other than the Executor. (Docket No. 1, p. 3).

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      12. On information and belief, the records obtained show
      substantial issues relating to the competency of [Fisher] and the
      independence of [Fisher] as of June 28, 2012.

      13. [Appellant] now files this Complaint because no further
      discovery or evidence can be obtained without full legal process.

      14. [Appellant’s] counsel states in this verified complaint the
      following:

            A. That [Appellees] consented to extension of the time frame
               in which to file complaint;
            B. That [Appellees] took action consistent with that agreement
               extending the statute of limitations;
            C. That [Appellant] has acted in reliance thereon and acted in
               good faith;
            D. That without the extension of the statute of limitations,
               Appellant would be damaged to his detriment.

                                 COUNT ONE
                                 Will Contest

      ***

      16. [Appellant] and [the College] are interested in [the 2012 will]
      to the extent that they were/are disinherited as beneficiaries
      thereunder, and was [sic] previously named as beneficiaries of
      [Fisher’s estate] in a previously executed Last Will and Testament,
      dated August 11, 2003 [(“the 2003 will”)];

      ***

                               COUNT TWO
                            Action for Accounting

      ***

      22. Upon information and belief, [the Executor] operated, as
      Attorney in Fact for [Fisher] for several years before her death.


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        [Appellant] demands that [the Executor] be held to account for the
        uses of the funds of [Fisher] during that time.

        23. No accounting has ever been offered or presented by [the
        Executor] to any of the interested parties.

        24. Plaintiff demands an accounting here, particularly since the
        review of the medical/psychiatric records of [Fisher] repeatedly
        reference her being in a “[c]atatonic” state.

(Docket No. 1, p. 1-7). Attached to the verified complaint was a copy of the 2012

will.

        {¶3} On March 17, 2015, Appellees filed a motion for a more definite

statement arguing that Appellant failed to attach a copy of the durable power of

attorney purportedly naming the Executor as Fisher’s attorney-in-fact. The trial

court granted Appellee’s motion, and on March 31, 2015, Appellant filed an

amended verified complaint, adding the following allegations:

                          FACTS COMMON TO ALL COUNTS

        3. On August 11, 2003, [Fisher] executed a general business
        Power of Attorney from herself to [the Executor] as her Attorney in
        Fact * * *.3

        4. On August 11, 2003, [Fisher] executed [the 2003 will] which
        made various and sundry bequests which included the bequeath to
        [the Executor] and [Appellant], in equal shares, all of the securities
        in her Price Waterhous [sic] Securities. * * *

        ***


3
  Paragraphs three and four of the amended verified complaint originally stated that the 2003 will and the
power of attorney were executed on August 11, 2013. Appellant was later granted leave to correct this
error.

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                                COUNT TWO
                             Action for Accounting

       25. On or about September 9, 2003, [the Executor] filed his Power
       of Attorney from [Fisher] * * * in the office of the Recorder of Knox
       County, Ohio in Book 824, Page 646 to 652.

       26. On or about September 9, 2003, the Power of Attorney for
       [Fisher] was used by [the Executor] to effect the transfer and sale of
       real property of [Fisher] located in Knox County, Ohio. * * *

       27. Upon information and belief, the proceeds of the sale of the
       Knox County, Ohio real estate was received by [the Executor] under
       [Fisher’s] Power of Attorney;

       28. The Price Waterhouse Securities are not listed as an asset in the
       probate inventory or account of the estate of [Fisher]. * * *
       Therefore, upon information and belief, these funds must have been
       either exhausted or used by [the Executor] or transferred elsewhere.

(Docket No. 13, p. 2-3). Attached to the amended verified complaint was a copy

of (1) Fisher’s durable power of attorney naming the Executor as her attorney-in-

fact; (2) the 2003 will; (3) the 2012 will; (4) a general warranty deed, executed by

the Executor, transferring title of Fisher’s Knox County real estate; (4) Fisher’s

estate’s “Inventory and Appraisal”; and (5) the “Fiduciary’s Account.”

       {¶4} On April 16, 2015, Appellees filed their answer and a motion for

summary judgment. In their motion for summary judgment, Appellees argued that

(1) Appellant’s will contest action was barred by the statute of limitations because

it was not commenced within three months of the filing of his “Waiver of Notice

of Probate of the Will”; (2) Appellant’s will contest action was barred by the


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doctrine of res judicata; (3) the Executor did not have the authority to waive the

statute of limitations; (4) the statute of limitations should not be tolled by the

doctrine of equitable estoppel; (5) Appellant lacked standing to request an

accounting because he was neither a party to the power of attorney nor a

beneficiary under the 2012 will; and (6) Appellant’s request for an accounting was

barred by the ten-year statute of limitations. Attached to their motion was a copy

of (1) the “Application to Probate Will” and “Entry Admitting Will to Probate”;

(2) Appellant’s “Waiver of Notice of Probate of Will” filed on June 13, 2014; (3)

the “Certificate of Service of Notice of Probate of Will”; (4) the “Fiduciary’s

Account”; (5) the “Entry Approving and Settling Account”; and (6) relevant case

law.

       {¶5} On May 15, 2015, Appellant filed a memorandum in opposition

arguing that (1) the trial court did not need to consider whether the statute of

limitations could be waived because the doctrine of equitable estoppel may be

used to prohibit the inequitable use of a statute of limitations defense; (2) his will

contest action was not barred by res judicata because not filing a will contest

action within the statute of limitations was not equivalent to a final valid decision

on the merits; (3) the doctrine of equitable estoppel may be used to prohibit the

inequitable use of a statute of limitations defense; (4) he did not lack standing to

request an accounting because the request was “inextricably linked” to the will


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contest action; and (5) his request for an accounting was not barred by the statute

of limitations because it was not limited to the Executor’s sale of the Knox County

property. (Docket No. 23, p. 13).

       {¶6} On May 22, 2015, Appellees filed their reply arguing that (1) a will

contest action filed outside the statute of limitations is barred; and (2) Appellant

lacked standing to request an accounting from Fisher’s attorney-in-fact unless and

until he could invalidate the 2012 will and reinstate the 2003 will.

       {¶7} On November 23, 2015, the trial court granted Appellees’ motion for

summary judgment finding that Appellant’s will contest action was filed outside

the statute of limitations and neither the Executor nor his counsel had the authority

to waive that the statute of limitations. In doing so, it stated

       [Appellant] contends that the argument of equitable estoppel will
       prevail and permit his filing to proceed nonetheless. [Appellant]
       states that his attorney and the [E]xecutor’s attorney met in June
       2014 and agreed to waive the statute of limitations. For purposes of
       this motion for summary judgment, the [c]ourt need not consider
       whether that argument is true. It should, in fact, take the statement
       as true and consider all other facts in the light most favorable to the
       [Appellant] as he is the nonmoving party. So for purposes of this
       motion, the [c]ourt hereby considers that such a meeting did in fact
       happen and the two agreed to waive the statute of limitations. The
       question remains: so what? If the attorney for an executor lacks the
       power to make such a waiver, the argument fails. Therefore, the
       [c]ourt will next consider the question: does the attorney for an
       executor possess the power to waive the statute of limitations.

       ***



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       Based upon the authorities cited and the undisputed facts in this
       case, * * * [t]he [c]ourt * * * finds that neither an executor nor his
       counsel can waive the statutory limitations outlined in the Ohio
       Revised Code.

(Docket No. 32, p. 4). It further found that Appellant lacked standing to request

an accounting because he was not a beneficiary of any of the funds held by Fisher

and spent by the Executor, Fisher’s attorney-in-fact.

       {¶8} It is from this judgment that Appellant appeals, presenting the

following assignments of error for our review.

                            Assignment of Error No. I

       THE PROBATE COURT ERRED IN GRANTING SUMMARY
       JUDGMENT TO APPELLEES IN THIS WILL CONTEST
       ACTION.

                           Assignment of Error No. II

       THE PROBATE COURT ERRED IN GRANTING SUMMARY
       JUDGMENT TO APPELLEES IN THIS ACTION FOR
       ACCOUNTING.

                             Assignment of Error No. I

       {¶9} In his first assignment of error, Appellant argues that the trial court

erred in granting Appellees summary judgment on his will contest action.

Specifically, Appellant argues that the trial court erred in finding that (1) the

doctrine of equitable estoppel does not apply as a matter of law in a will contest

action; and (2) because neither the Executor nor his counsel had the authority to



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waive the statute of limitations, his equitable estoppel argument fails.4                                 We

disagree.

         {¶10} An appellate court reviews a summary judgment order de

novo. Hillyer v. State Farm Mut. Auto. Ins. Co., 131 Ohio App.3d 172, 175 (8th

Dist.1999). However, a reviewing court will not reverse an otherwise correct

judgment merely because the lower court utilized different or erroneous reasons as

the basis for its determination. Diamond Wine & Spirits, Inc. v. Dayton

Heidelberg Distrib. Co., Inc., 148 Ohio App.3d 596, 2002-Ohio-3932, ¶ 25 (3d

Dist.), citing State ex rel. Cassels v. Dayton City School Dist. Bd. of Edn., 69 Ohio

St.3d 217, 222 (1994). Summary judgment is appropriate when, looking at the

evidence as a whole: (1) there is no genuine issue as to any material fact, and (2)

the moving party is entitled to judgment as a matter of law. Civ.R. 56(C). In

conducting this analysis the court must determine “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, [the nonmoving] party being

entitled to have the evidence or stipulation construed most strongly in the

[nonmoving] party’s favor.” Id. If any doubts exist, the issue must be resolved in

4
  The trial court did not find that equitable estoppel does not apply, as a matter of law, in a will contest
action. Rather, it found that Appellant’s will contest action was barred by the statute of limitations because
neither the Executor nor his counsel had the ability to waive the statute of limitations. It explained, “If the
attorney for an executor lacks the power to make such a waiver, the [equitable estoppel] argument fails.”
(Docket No. 32, p. 4). This suggests that the trial court would have considered Appellant’s equitable
estoppel claim had it found that the Executor or his counsel had the ability to waive the statute of
limitations.


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favor of the nonmoving party. Murphy v. City of Reynoldsburg, 65 Ohio St.3d

356, 358-359 (1992).

       {¶11} The party moving for summary judgment has the initial burden of

producing some evidence which demonstrates the lack of a genuine issue of

material fact. Dresher v. Burt, 75 Ohio St.3d 280, 292 (1996). In doing so, the

moving party is not required to produce any affirmative evidence, but must

identify those portions of the record which affirmatively support his argument. Id.

at 292. The nonmoving party must then rebut with specific facts showing the

existence of a genuine triable issue; he may not rest on the mere allegations or

denials of his pleadings. Id.; Civ.R. 56(E).

       {¶12} “A person interested in a will * * * admitted to probate in the

probate court that has not been declared valid by judgment of a probate court * * *

may contest its validity by filing a complaint in the probate court in the county in

which the will * * * was admitted to probate.” R.C. 2107.71(A). “No person who

has * * * waived the right to receive notice of the admission of a will to probate *

* * may commence [a will contest action] more than three months after the filing

of the [waiver of notice] * * *.” R.C. 2107.76. The only exception to this filing

requirement concerns persons under legal disability. Id.

       {¶13} Equitable estoppel—a defensive doctrine preventing one party from

taking unfair advantage of another—requires proof of the following elements: (1)


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the defendant made a factual misrepresentation; (2) that is misleading; (3) that

induces actual reliance that is reasonable and in good faith; and (4) that causes

detriment to the relying party.” Heskett v. Paulig, 131 Ohio App.3d 221, 226-27,

(3rd Dist.1999), quoting Walworth v. BP Oil Co., 112 Ohio App.3d 340, 345 (8th

Dist.1996). This doctrine has been used to challenge a statute of limitations

defense. See, e.g., Helman v. EPL Prolong, Inc., 139 Ohio App.3d 231 (7th

Dist.2000) (action for fraud); Hutchinson v. Wenzke, 131 Ohio App.3d 613 (2nd

Dist. 1999) (medical malpractice action); Schrader v. Gillette, 48 Ohio App.3d

181 (11th Dist.1988) (medical malpractice action).

         {¶14} This Court is unaware of any Ohio court that has addressed the issue

in this case: whether equitable estoppel applies in a will contest action under R.C.

2107.76.5 This Court has addressed, however, a related issue: whether equitable

principles apply in an action between a creditor and a decedent’s estate under R.C.

2117.06.

         {¶15} R.C. 2117.06 provides that “[a]ll creditors having claims against an

estate, including claims arising out of contract, out of tort, on cognovit notes, or on

judgments, whether due or not due, secured or unsecured, liquidated or

unliquidated” shall present their claims to the executor or the administrator within

5
  Although the trial court found that Appellant’s equitable estoppel argument failed because neither the
Executor nor his counsel had the ability to waive the statute of limitations, we need not consider this issue
because whether the statute of limitations is waivable does not affect Appellant’s ability to assert an
equitable estoppel claim to prevent the inequitable use of a statute of limitations defense.


                                                   -12-
Case No. 5-15-31


six months after the decedent’s death.         The only exceptions to this filing

requirement concern contingent claims and certain State claims. See R.C.

2117.06(C), 2117.37-2117.42.

       {¶16} In Dilbert v. Watson, 3rd. Dist. Logan No. 8-09-02, 2009-Ohio-2098

and Harshbarger v. Moody, 3rd Dist. Logan No. 8-09-13, 2010-Ohio-103, this

Court found that a creditor could not bring an untimely claim against an estate

unless one of the above-mentioned exceptions were met; we expressly rejected

the appellants’ argument that the discovery rule—an equitable principle providing

that a cause of action accrues for purposes of the governing statute of limitations at

the time when the plaintiff discovers or, in the exercise of reasonable care, should

have discovered the complained of injury—could challenge a statute of limitations

defense. In doing so, we noted that the statute of limitations could not be ignored

on the basis of “general equitable principles.” Dilbert at ¶ 15, citing The Ohio

Savings Assn. v. Friedman, 8th Dist. Cuyahoga No. 40001, 1980 WL 354413, *3

(Jan. 4, 1980).

       {¶17} Appellant argues that our findings in Dilbert and Harshbarger

should not apply in this case because those findings relate to the discovery rule,

which focuses on the plaintiff’s conduct, as opposed to equitable estoppel, which

focuses on the defendant’s conduct.        However, we declined to ignore R.C.

2117.06’s statute of limitations on the basis of “general equitable principles”


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which necessarily encompasses equitable estoppel, and if we declined to apply

“general equitable principles” in an action against a decedent’s estate under R.C.

2117.06 because it was outside the purview of the statute, then it logically follows

that we would decline to apply “general equitable principles” in an action against a

decedent’s estate under R.C. 2107.76 because it is outside the purview of the

statute.

       {¶18} Moreover, equitable estoppel perpetuates the delay in finalizing a

decedent’s estate. This fact becomes significant when considering the General

Assembly’s intent behind R.C. 2107.71: “to accelerate the settlement of estates.”

Fletcher v. First Natl. Bank of Zanesville, 167 Ohio St. 211, 215 (1958). This

intent was recently underscored through an amendment to R.C. 2305.19, Ohio’s

“savings statute.” Under former R.C. 2305.19, in any action that was commenced

or attempted to be commenced, if in due time a judgment for the plaintiff was

reversed or if the plaintiff failed otherwise than upon the merits, the plaintiff, or

the plaintiff’s representative, could commence a new action within one year or

within the period of the original statute of limitations, whichever occurred later.

However, effective March 2012, this statute no longer applies to an action under

R.C. 2107.76. R.C. 2305.19. The practical result: under the Revised Code, no

will contest action can be commenced beyond the statute of limitations, except in

the case of a legal disability.


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      {¶19} Based on our findings in Dilbert and Harshbarger, and the General

Assembly’s intent behind R.C. 2107.71, we find that equitable estoppel does not

apply in an action under R.C. 2107.71. Therefore, we cannot say that the trial

court erred in granting summary judgment in favor of Appellees on Appellant’s

will contest action, as the action was filed beyond the statute of limitations and

does not fit within the exception under R.C. 2107.76

      {¶20} Accordingly, we overrule Appellant’s first assignment of error.

                            Assignment of Error No. II

      {¶21} In his second assignment of error, Appellant argues that the trial

court erred in determining that he lacked standing to request an accounting

because he was not a beneficiary of any funds held by the decedent and spent by

the Executor, Fisher’s attorney-in-fact. We disagree.

      {¶22} “Traditional standing principles require litigants to show, at a

minimum, that they have suffered ‘(1) an injury that is (2) fairly traceable to the

defendant's allegedly unlawful conduct, and (3) likely to be redressed by the

requested relief.’ ” ProgressOhio.org, Inc. v. JobsOhio, 139 Ohio St.3d 520, 2014-

Ohio-2382, ¶ 7, citing Moore v. Middletown, 133 Ohio St.3d 55, 2012-Ohio-3897,

¶ 22. Standing is determined at the commencement of a suit. Fed. Home Loan

Mortg. Corp. v. Schwartzwald, 134 Ohio St.3d 13, 2012-Ohio-5017, ¶ 24.




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       {¶23} R.C. 1337.36(A) provides that any of the following persons may

petition a court to construe a power of attorney or review an agent’s conduct and

grant appropriate relief:

       ***

       (6) A person named as a beneficiary to receive any property,
       benefit, or contractual right on the principal’s death or as a
       beneficiary of a trust created by or for the principal that has a
       financial interest in the principal’s estate;

       ***

An agent is a “person granted authority to act for a principal under a power of

attorney, whether denominated an agent, attorney in fact, or otherwise.” R.C.

1337.22(A).

       {¶24} While these statutes took effect in March 2012, as part of the

adoption of the Uniform Power of Attorney Act, R.C. 1337.36(A) applies to (1)

“[a] power of attorney created before, on, or after the effective date of this section”

and (2) “[a] judicial proceeding concerning a power of attorney commenced on or

after the effective date of this section.” R.C. 1337.64.

       {¶25} Appellant concedes that he was not a named beneficiary under the

2012 will. He argues, however, that because he is contesting the validity of the

2012 and seeking reinstatement of the 2003 will, he has standing to request an

accounting from the Executor, Fisher’s attorney-in-fact. But, under the statute’s

plain language, only those persons named as a beneficiary on the principal’s death

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may petition the court to review an agent’s conduct; former beneficiaries are

outside the purview of the statute. Moreover, as explained above, there is no

scenario under which the 2003 will can be declared Fisher’s Last Will and

Testament, and therefore, there is no scenario under which Appellant can become

a beneficiary within the meaning of the statute.

       {¶26} Therefore, we cannot say that the trial court erred in granting

summary judgment in favor of Appellees on Appellant’s action for an accounting,

as Appellant lacked standing to petition the court to review the conduct of the

Executor, Fisher’s attorney-in-fact.

       {¶27} Accordingly, we overrule Appellant’s second assignment of error.

       {¶28} Having found no error prejudicial to the appellant, in the particulars

assigned and argued, we affirm the judgment of the trial court.

                                                                  Judgment Affirmed

SHAW, P.J. and WILLAMOWSKI, J., concur.

/jlr




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