[Cite as Castro v. Castro, 2013-Ohio-1671.]




                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                       No. 99037


              DAVID K. CASTRO, ADMINISTRATOR
             OF THE ESTATE OF VERA BATES-LUCAS
                                                PLAINTIFF-APPELLANT

                                                 vs.

                             JOSEPH CASTRO, ET AL.
                                                DEFENDANTS-APPELLEES



                                              JUDGMENT:
                                               AFFIRMED


                                      Civil Appeal from the
                             Cuyahoga County Court of Common Pleas
                                     Probate Court Division
                                   Case No. 2011 EST 169440

            BEFORE: Blackmon, J., Boyle, P.J., and E.T. Gallagher, J.
            RELEASED AND JOURNALIZED:              April 25, 2013
ATTORNEY FOR APPELLANT

Mark D. McGraw
1370 Ontario Street, Suite 800
Cleveland, Ohio 44113


ATTORNEY FOR APPELLEES

James H. Hewitt, III
Hewitt Law L.L.C.
3043 Superior Avenue
Cleveland, Ohio 44114
PATRICIA ANN BLACKMON, J.:

       {¶1} Appellant David K. Castro (“David”), administrator of the Estate of Vera

Bates-Lucas (“Bates-Lucas”), appeals the judgment of the Cuyahoga County Court of

Common Pleas, Probate Division, that removed him as administrator of his mother’s

estate. David assigns the following error for our review:

       I. The trial court committed reversible error in removing appellant
       David K. Castro as administrator of the estate of Vera Bates-Lucas.

       {¶2} Having reviewed the record and pertinent law, we affirm the trial court’s

decision. The apposite facts follow.

       {¶3} On March 31, 2011, Bates-Lucas died and was survived by two sons. On

November 8, 2011, the probate court appointed the older son, David, as the administrator

of the estate.    At the time of her death, Bates-Lucas owned real property located at 5225

Theodore Street, Maple Heights, Ohio. This single family dwelling became the primary

asset of the Bates-Lucas estate.

       {¶4} On May 3, 2012, Joseph Castro (“Joseph”), filed a motion to remove his

brother, David, as administrator of their mother’s estate. In the motion, Joseph alleged

that the single family dwelling was being occupied by a relative of David and the

occupant had not paid rent since Bate-Lucas’s death. Joseph further alleged that David

had failed to take steps to preserve the property that Joseph believed was facing

foreclosure.     Finally, Joseph alleged that he had been paying the mortgage for the

property prior to Bates-Lucas’s death.
        {¶5} In his motion in opposition, David countered that since his appointment as

administrator, he had signed an agreement to rent the property to Tenisha and Carl Busby,

his niece and her husband, who had been living in the property since June 2009. David

countered that he had received rents totaling $4,480.05 that he had deposited into the

estate account, but had not paid the mortgage because the house is worth less than the

balance owing on the mortgage.

        {¶6} On June 11, 2012, the probate court held a hearing on Joseph’s motion to

remove David as administrator of the estate. On the same day, the probate court heard a

concealment action filed by David against Joseph and his wife. We separately reviewed

said concealment action in Castro v. Castro, 8th Dist. No. 98710, 2013-Ohio-1347.

        {¶7} Joseph, David, and Tenisha Busby testified at the hearing. The testimony

established that Tenisha Busby, the tenant in residence of the single family dwelling, is

Joseph’s daughter.        Busby had entered into a rental agreement with the

option-to-purchase regarding the subject property and was to make monthly payments of

$700.

        {¶8} The testimony established that David had been collecting rent from Busby

and her husband, depositing it into the estate account, but not paying the mortgage.

David testified that he did not pay the mortgage because the property was worth less than

the amount owed to the mortgage holder. The record reveals that as of March 23, 2012,

the mortgage was in default in the amount of $7,715.48, and in imminent danger of

foreclosure.
       {¶9} On September 7, 2012, the probate court issued a journal entry removing

David as administrator of his mother’s estate. David now appeals.

                                Removal of Administrator

       {¶10} In the sole assigned error, David argues the probate court erred when it

removed him as administrator of his mother’s estate.

       {¶11} Our standard of reviewing a probate court’s decision to remove a fiduciary

or guardian is the abuse of discretion standard. In re Estate of Karder, 5th Dist. No.

2010CA00297, 2011-Ohio-3229, citing In Re: Estate of Russolillo, 69 Ohio App.3d 448,

590 N.E.2d 1324 (10th Dist.1990). The Supreme Court has repeatedly defined the term

abuse of discretion as implying the court’s attitude is unreasonable, arbitrary or

unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140

(1983).   In applying the abuse of discretion standard, this court may not substitute our

judgment for that of the trial court. Pons v. Ohio State Med. Bd., 66 Ohio St.3d 619, 621,

1993-Ohio-122, 614 N.E.2d 748.

       {¶12} We find that the probate court’s decision to remove David as administrator

was not arbitrary, unconscionable, or unreasonable.

       {¶13} In the instant case, the probate court’s journal entry removing David as

administrator stated in pertinent part as follows:

       * * *The Court further finds that David Castro failed to make
       payments toward the mortgage of the estate property (payments had
       been made by Joseph Castro until the appointment of David) and that
       he failed to obtain a rental agreement from the occupants until April
       19, 2012.     The Court further finds that the estate received
       communication from the mortgage holder that the property is in
       default.

       The Court finds that a final account for the estate was due on or about
       May 21, 2012. The Court finds that a citation was issued on July 19,
       2012 due to failure to file an account * * *.

       The Court finds that David Castro has failed to administer the estate in
       a timely manner and further finds that David Castro has neglected his
       duty to preserve the assets of the estate. Journal Entry, September 7,
       2012.

       {¶14} R.C. 2109.24 governs the removal of fiduciaries and states, in relevant part:

       The court may remove any fiduciary, after giving the fiduciary not less

       than ten days notice, for habitual drunkenness, neglect of duty,

       incompetency, or fraudulent conduct, because the interest of the

       property, testamentary trust, or estate that the fiduciary is responsible

       for administering demands it, or for any other cause authorized by law.

        In re Estate of Sneed, 6th Dist. No. L-06-1054, 2007-Ohio-1190.

       {¶15} Here, the probate court found that David had failed to timely administer the

estate and failed to preserve the assets of the estate. The probate court’s findings is

without dispute. Primarily, the record reveals that the estate’s real property was in

default and in imminent danger of foreclosure. David admitted collecting the rent from

Busby and then placing it in the estate’s account, instead of paying the mortgage.   David

posited that it was useless to pay the mortgage because the property was worth less than

the outstanding mortgage balance.
       {¶16} However, despite the inverse relationship of the property value and the

mortgage balance, David had no right to withhold payment.                David could have

communicated with the mortgage holder about a loan modification or explore the

possibility of listing the property for a short sale.   David failed to present any evidence

that he took any steps to safeguard the estate’s assets. Instead, he totally disregarded the

communication from the mortgage company that the property was in imminent danger of

default.

       {¶17} Under the circumstances here, the probate court did not abuse its discretion

in removing David as administrator of his mother’s estate. Accordingly, we overrule the

sole assigned error.

       {¶18} Judgment affirmed.

       It is ordered that appellees recover from appellant costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate be sent to said court to carry this judgment into

execution.



       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.



PATRICIA ANN BLACKMON, JUDGE

MARY J. BOYLE, P.J., and
EILEEN T. GALLAGHER, J., CONCUR
