[Cite as Graham v. Szuch,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 100228

SONJA GRAHAM PLAINTIFF-APPELLANT

vs.

GENE SZUCH, ET AL. DEFENDANTS-APPELLEES

JUDGMENT: AFFIRMED

Civil Appeal from the Cuyahoga County Court of Common Pleas Probate Division Case No. 2012 ADV 181974

BEFORE: E.T. Gallagher, J., S. Gallagher, P.J., and E.A. Gallagher, J.

RELEASED AND JOURNALIZED: April 24, 2014 ATTORNEYS FOR APPELLANT

John P. Malone, Jr. Andrew R. Malone Malone Law, L.L.C. 614 West Superior Avenue, Suite 1150 Cleveland, Ohio 44113

ATTORNEY FOR APPELLEE

Eric Weiss Cavitch, Familo & Durkin Co., L.P.A. 1300 East Ninth Street, 20th Floor Cleveland, Ohio 44114

For KeyBank

Melissa Zujkowski Ulmer & Berne, L.L.P. Skylight Office Tower 1660 West 2nd Street, Suite 1100 Cleveland, Ohio 44113 EILEEN T. GALLAGHER, J.:

{¶1} Plaintiff-appellant, Sonja Graham (“Sonja”), appeals an order of the

Cuyahoga County Probate Court granting summary judgment in favor of

defendant-appellee, Gene Szuch (“Szuch”), individually and as the administrator of the

Estate of Sandra L. Szuch. We find no merit to the appeal and affirm.

{¶2} This case involves an ownership dispute over shares of stock in four family

owned, close corporations (“the Skrl Companies”) founded by Stanley Skrlj (“Stanley”)

in the 1950s and 1960s. Skrlj and his wife, Olga Skrlj (“Olga”), had two daughters;

Sonja and Sandra. In 1969, Sonja married Roland Graham, and in 1971, Sandra married

Szuch. Sonja, Sandra, and their husbands were employed by the Skrl Companies.

{¶3} In 1976, Stanley executed a revocable trust agreement (“the Trust”). The

shares of stock in the Skrl Companies comprised the corpus of the trust, which was

composed of two separate trusts, a marital Trust (“Trust A”) and a non-marital residue

trust (“Trust B”). Upon the death of the survivor of Stanley and Olga, the assets

remaining in Trust A were to be combined with the assets in Trust B and distributed

outright and equally to Sonja and Sandra.

{¶4} Olga survived Stanley, who died in 1988. As a result of Stanley’s death,

certain assets were delivered to the trustee of the Trust from Stanley’s estate including (1)

100 shares of Skrl Tool & Die Inc.; (2) 100 shares of Skrl Die Casting Inc.; (3) 100 shares

of Skrl Design Inc.; and (4) 100 shares of Skrl Realty Inc. Of these shares, Trust A was

funded with seven shares in each of the Skrl Companies. Trust B was funded with the remainder of the assets received from Stanley’s estate, which comprised 93 shares in each

of the Skrl Companies. The Trust was managed by KeyBank (formerly “Society

National Bank”) as trustee. As permitted by the Trust, the trustee distributed all of the

assets in Trust A to Olga upon her request in 1999, and KeyBank continued to manage the

assets in Trust B.

{¶5} Despite the terms of the Trust requiring equal distribution of the assets of

Trust B to Sonja and Sandra upon Olga’s death, KeyBank continued to manage the assets

for several years after Olga’s death in 2002. In October 2006, Sherry Bartolotta (

“Bartolotta”), vice president and trust officer at KeyBank, sent a letter to Sonja and

Sandra advising them that Trust B required outright distribution of its assets to them in

equal shares as a result of their mother’s death. Neither Sonja nor Sandra took any

action with respect to the mandatory distribution.

{¶6} In September 2009, Bartolotta forwarded the 93 stock certificates in each of

the four Skrl Companies to Sandra at the Skrl Companies’ (Companies’) address. She

sent a copy of the letter and enclosures to Sonja at her home address, though Sonja

maintains she never received these letters. Nevertheless, at the time of Sandra’s death in

July 2011, the stock certificates were still titled in the name of “Society National Bank,

Trustee, created under the Stanley Skrlj Trust Agreement dated 2/1/76.”

{¶7} Sonja, as a beneficiary of the Trust, filed a complaint against Szuch seeking a

declaratory judgment that she was the owner of the 46.5 shares of each of the Skrl

Companies (Skrl Tool & Die, Skrl Design Inc., Skrl Realty, Inc., and Skrl Die Casting, Inc.) to which the Estate of Sandra Szuch claimed ownership. Sonja alleged that

Sandra’s refusal during her lifetime to accept ownership of the shares tendered by

KeyBank constituted a rejection of the shares. She further alleged that Sandra

intentionally refused to accept the shares in order to interfere with Sonja’s right to

co-manage the Skrl Companies as a 50% shareholder and to conceal her use of corporate

funds for extravagant personal expenditures.

{¶8} Szuch answered the complaint and filed a counterclaim seeking a declaration

that the Estate of Sandra Szuch is entitled to her 50% portion of stocks in the Skrl

Companies that vested during her lifetime, even though the stock certificates were not

registered in her name. The pleadings were amended, and Szuch filed a motion for

summary judgment supported in part by an affidavit from Bartolotta. Sonja moved to

strike Bartolotta’s affidavit on grounds that it contained non-factual opinion statements.

{¶9} The trial court granted the motion to strike, in part, and struck certain

paragraphs from Bartolotta’s affidavit that contained legal conclusions and opinions.

The trial court also granted Szuch’s motion for summary judgment and declared that

Sandra Szuch’s estate is entitled to one half of the 93 shares of stock (46.5 shares) in each

the Skrl Companies. Sonja now appeals and raises five assignments of error.

Standard of Review

{¶10} Szuch’s first four assignments of error assert that the trial court erred in

granting summary judgment in favor of Szuch for various reasons. We review an appeal

from summary judgment de novo. Grafton v. Ohio Edison Co.,

,

(1996). The party moving for summary judgment bears the burden of

demonstrating the absence of a genuine issue of material fact as to the essential element

of the case with evidence of the type listed in Civ.R. 56(C). Dresher v. Burt,

,

(1996). Once the moving party demonstrates entitlement

to summary judgment, the burden shifts to the nonmoving party to produce evidence

related to any issue on which the party bears the burden of production at trial. Civ.R.

56(E). Summary judgment is appropriate when, after construing the evidence in a light

most favorable to the party against whom the motion is made, reasonable minds can only

reach a conclusion that is adverse to the nonmoving party. Zivich v. Mentor Soccer Club,

,

(1998).

Acceptance of Shares

{¶11} In the first assignment of error, Sonja argues the trial court erred in failing to

find sufficient evidence upon which a factfinder could determine that Sandra rejected the

gift of her shares in the Skrl Companies. She contends Sandra’s failure to register the

stock in her own and Sonja’s names is proof that Sandra renounced her rights and

interests in the Skrl Companies.

{¶12} Sonja relies on In re Estate of Hershey,

,

(10th Dist. 1965) in support of her argument. In Hershey, the court held that two

beneficiaries of joint and survivorship bank accounts renounced a presumed gift of the bank accounts because there was “nothing in the record to evidence an assent by the

donees.” However, Hershey is distinguishable from the instant case because the donees

in Hershey filed a complaint for declaratory judgment asking the court to find that they

disclaimed and renounced any ownership interest in the accounts.

. In other

words, they actively sought renunciation.

{¶13} “The law presumes, until there is proof to the contrary, that every gift,

whether in trust or not, is accepted by the person to whom it is expressed to be given.”

Andrews v. Ohio State Teachers Retirement Sys. Bd.,

,

(1980). (Emphasis added.) Further, the issuance of a stock certificate is not

necessary to establish corporate ownership. Estate of Thomas v. Thomas, 6th Dist. Lucas

No. L-11-1064,

, ¶ 40. See also Algren v. Algren,

,

,

(2d Dist.). A stock certificate is simply a

representation of a share, not the share itself, which is intangible. Algren at 119.

Although the existence and transfer of stock certificates may provide evidence of a

completed gift of corporate stock, such evidence is not necessary to establish ownership.

Id.

{¶14} Pursuant to the terms of the Trust, Sonja and Sandra’s interest in the Trust

property vested upon the death of their mother, Olga. Black’s Law Dictionary defines

“vest” as “[t]o give an immediate, fixed right of present or future enjoyment. * * * To

clothe with possession.” Black’s Law Dictionary 1563 (6th Edition). Thus, when an

interest vests, ownership is established. Gilman v. Hamilton Cty. Bd. of Revision,

,

,

, ¶ 16; Natl. City Bank v. Beyer,

,

(2000).

{¶15} Sonja and Sandra’s interests in the Skrl Companies vested when their

mother died even though stock certificates were not registered in their names. In contrast

to the beneficiaries in Hershey, it is undisputed that Sandra never actively disclaimed

ownership of her shares of stock. The undisputed evidence shows that Sandra managed

the companies until the time of her death. Sandra’s continued service to the companies is

inconsistent with an intent to renounce ownership of them. Indeed, her work for the Skrl

companies manifests the opposite intention of abandonment or rejection. Even if we

assume that Sandra intended to delay registering the stocks in hers and Sonja’s names in

order to conceal malfeasance, concealment does not equate to renunciation. There

simply is no evidence that Sandra took any affirmative steps to reject her shares of stock

that could rebut the presumption of acceptance. There was no evidence upon which a

trier of fact could conclude that she intended to renounce her interests in the Skrl

Companies.

{¶16} Therefore, the first assignment of error is overruled.

Statutory Disclaimer

{¶17} In the second assignment of error, Sonja contends the trial court erred in

failing to consider R.C. 5815.36(G)(3), which governs disclaimers of succession to

property. She asserts that had the probate court applied R.C. 5815.36(G)(3) to the facts of this case, it would have concluded that Sandra’s interests in the shares could not pass

to her estate as a matter of law.

{¶18} R.C. 5815.36(G)(3) provides that where a donee renounces a gift from a

non-testamentary instrument, the property passes as if the donee died before the effective

date of the instrument. However, R.C. 5815.36(B)(1) prescribes the manner in which a

donee may disclaim the succession to any property and requires a “written disclaimer

instrument,” that must be executed, delivered, filed, and recorded. It is undisputed that

Sandra never executed a written disclaimer instrument disclaiming her interest in half of

all the stock in the Skrl Companies.

{¶19} Nevertheless, R.C. 5815.36(N)(1) states that “the procedures for disclaimer

established by this section are in addition to, and do not exclude or abridge, any other

rights or procedures that exist or formerly existed under any other section of the Revised

Code or at common law to * * * refuse to accept, renounce, waive or disclaim property.”

Former R.C. 1339.68(G), the predecessor statute of R.C. 5815.36(G)(3), also required an

executed written disclaimer. Thus, statutorily prescribed disclaimers must be in writing.

{¶20} At common law, however, a disclaimer or renunciation need not be in

writing to be effective. Brown v. Routzhan,

(6th Cir. 1933). Sonja relies on

Brown for the proposition that Sandra’s failure to distribute the shares and register stock

certificates operates as a common law disclaimer. However, the Brown court explained

that while the acceptance or renunciation need not be in writing, an acceptance or

renunciation still required a “deliberate and unequivocal act indicating the intention.”

. This rule is consistent with the common law rule that every gift is presumed

accepted absent proof to the contrary. Andrews,

,

.

{¶21} As previously explained, there is no evidence in the record that Sandra ever

made a “deliberate and unequivocal act” manifesting an intent to renounce her shares.

Her service to the Skrl Companies demonstrates an ongoing interest in them rather than

renunciation. Therefore, there is no evidence in the record to support Sonja’s claim that

Sandra renounced her gift of shares under either statutory or common law.

{¶22} The second assignment of error is overruled.

Conditions for Delivery

{¶23} In the third assignment of error, Sonja argues that because Sandra never

registered the shares of stock in hers and Sonja’s name, conditions on the transfer of stock

were never fulfilled, and Sandra never became an owner of her gift of shares. Sonja

contends the gift of the shares was never completed by the donor because KeyBank had

not yet relinquished all dominion and control over the stock certificates and had placed

express conditions on the transfer that were not fulfilled. According to Sonja, KeyBank

refused to tender the stock certificates until its fees were paid, and it received a written

assurance from Sandra that the stocks were accepted, transferred, and registered.

{¶24} However, as previously held above, Sandra’s interest in her shares of stock

vested automatically upon the death of both her parents pursuant to the terms of the Trust,

regardless of notice, delivery, or registration of the stock certificates. The issuance of a

stock certificate is not necessary to establish corporate ownership. Thomas,

, at ¶ 40; Algren,

,

. Therefore,

the fact that Sandra never registered new stock certificates to reflect title in her own and

Sonja’s names or notified Sonja of the transfer of title to the shares is irrelevant.

{¶25} Further, the terms of the Trust support the court’s conclusion that Sandra’s

estate was entitled to ownership of Sandra’s shares. “A court’s purpose in interpreting a

trust is to effectuate, within the legal parameters established by a court or by statute, the

settlor’s intent.” Domo v. McCarthy,

,

(1993),

paragraph one of the syllabus. When the language in a trust is unambiguous, the

grantor’s intent can be determined from the express terms of the trust itself.

.

{¶26} In this case, the Trust does not contain a “lapse” provision that would cause

Sandra’s interest in the shares to lapse if she were to die prior to the distribution. The

Trust provides that following the death of the survivor of Stanley or Olga, the assets must

be distributed to any then living lineal descendants, per stirpes. The only condition on

inheriting the Trust assets was to be a living lineal descendant at the time the survivor of

Stanley and Olga died.

{¶27} Sandra lived almost ten years after her mother’s death and over 20 years

after her father’s death. In the absence of a lapse provision in the Trust that would have

caused Sandra’s shares to lapse because she died prior to distribution of her shares, her

interests in the shares vested automatically upon the death of her mother. Neither Ohio

law nor the terms of the Trust created any conditions precedent to succession of the shares such as notice, delivery, and acceptance. Furthermore, KeyBank was merely a

trustee without authority to change the terms of the trust.

{¶28} Therefore, the third assignment of error is overruled.

Fiduciary Duty

{¶29} In the fourth assignment of error, Sonja argues that Sandra was a trustee for

her in accepting delivery of the shares of stock and breached duties of good faith and

loyalty owed to Sonja by failing to notify Sonja of her gift of shares after Olga’s death.

Sonja also argues the doctrine of unclean hands bars Szuch from receiving Sandra’s

shares.

{¶30} However, Sonja failed to allege claims for breach of fiduciary duty against

Szuch in her amended complaint. According to Szuch, Sonja asserted claims for breach

of fiduciary duty in a counterclaim that is currently pending in the Lake County probate

court. Her breach of fiduciary duty claims may have merit but they were not properly

before the Cuyahoga County probate court and cannot be asserted for the first time in this

appeal.

{¶31} Sonja asserted the doctrine of unclean hands as an affirmative defense in her

answer to the amended counterclaim and raised the issue of unclean hands in her brief in

opposition to Szuch’s motion for summary judgment on his counterclaim. She argued

that both Sandra and Szuch intentionally deprived her of her right to 50% ownership in

the Skrl Companies in order to convert corporate funds for their own personal use. Thus, despite Szuch’s argument otherwise, Sonja preserved the equitable defense of unclean

hands for appeal.

{¶32} The unclean hands doctrine is a defense against claims in equity. Rivers v.

Otis Elevator, 8th Dist. Cuyahoga No. 99365,

. It requires a

showing that the party seeking relief engaged in reprehensible conduct with respect to the

subject matter of the action. State ex rel. Coughlin v. Summit Cty. Bd. of Elections,

,

,

. Courts should not impose the

unclean hands doctrine where a party has legal remedies available to address the harm

caused by an opposing party’s misconduct. Safranek v. Safranek, 8th Dist. Cuyahoga

No. 80413,

, ¶ 20. The application of the doctrine is at the discretion of

the trial court. Nowinski v. Nowinski, 5th Dist. Licking No. 10 CA 115,

.

{¶33} In this case, Sonja’s unclean hands defense involves the same conduct that

gave rise to her breach of fiduciary claims, which she is currently pursuing in the Lake

County probate court. The breach of fiduciary duty claims provide a legal remedy to

compensate Sonja for any financial loss caused by Sandra and Szuch’s alleged

misconduct. Therefore, the trial court did not abuse its discretion when it failed to apply

the unclean hands doctrine to bar Szuch’s counterclaim for declaratory judgment in this

case.

{¶34} The fourth assignment of error is overruled. Bartolotta’s Affidavit

{¶35} In the fifth assignment of error, Sonja argues that although the court struck

some paragraphs of Bartolotta’s affidavit, the court erroneously admitted paragraphs 16,

21, 22, 23, 24, 26, 27, and 28. She contends these paragraphs contain expert testimony

for which Bartolotta was not qualified to proffer conclusions of law.

{¶36} A trial court or reviewing court may consider an affidavit made part of a

motion for summary judgment even though it contains opinions as long as it meets the

requirements set forth in Civ.R. 56(E) and Evid.R. 701. Tomlinson v. Cincinnati,

,

(1983), paragraph one of the syllabus. Under Ohio Evid.R.

701,

[i]f the witness is not testifying as an expert, the witness’ testimony in the form of opinions or inferences is limited to those opinions or inferences which are (1) rationally based on the perception of the witness and (2) helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue.

Similarly, Civ.R. 56(E) states, in relevant part, that “affidavits shall be made on personal

knowledge, shall set forth such facts as would be admissible in evidence, and shall show

affirmatively that the affiant is competent to testify as to the matters stated in the

affidavit.” Thus, an affidavit must set forth facts, not legal conclusions, and the facts

must be based on the affiant’s personal knowledge. Youssef v. Parr, Inc.,

,

(8th Dist. 1990). The trial court is vested with

considerable discretion in determining whether the trier of fact will be aided by lay opinion testimony. State v. Hand,

;

,

, ¶

125.

{¶37} Paragraphs 16, 21, 22, 23, 24, 26, 27, and 28 of Bartolotta’s affidavit set

forth facts based on her personal knowledge. In paragraph 5, Bartolotta states that she is

familiar with the Trust because of her work as a trust officer at KeyBank. Although

some of the disputed paragraphs in the affidavit contain opinions on ultimate issues in the

case, opinion testimony or inference otherwise admissible “‘is not objectionable solely

because it embraces an ultimate issue to be decided by the trier of fact.’” State v. Crotts,

,

,

, quoting Evid.R. 704.

Bartolotta’s opinions are rationally based on her own perceptions and are helpful in

determining critical issues of fact in the case. Therefore, Bartolotta’s affidavit complies

with the requirements of Civ.R. 56(E) and Evid.R. 701, and we find no abuse of

discretion in the court’s decision to admit these paragraphs into evidence.

{¶38} The fifth assignment of error is overruled.

{¶39} Judgment affirmed.

It is ordered that appellee 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 the Cuyahoga County Court of

Common Pleas — Probate Division 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. EILEEN T. GALLAGHER, JUDGE

SEAN C. GALLAGHER, P.J., and EILEEN A. GALLAGHER, J., CONCUR