[Cite as in re Estate of DeChellis,

.]

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

IN RE: ESTATE OF JUDGES: : Hon. W. Scott Gwin, P.J. PHILIP JOHN DECHELLIS : Hon. John W. Wise, J. : Hon. Patricia A. Delaney, J. : : : Case No. 2020CA00081 : : : OPINION

CHARACTER OF PROCEEDING: Civil appeal from the Stark County Court of Common Pleas, Probate Division, Case No.233654

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: December 9, 2020

APPEARANCES:

For-Appellants For-Appellee

CRAIG CONLEY DAVID L. DINGWELL 604 Huntington Plaza 220 Market Avenue South 220 Market Avenue South Eighth Floor Canton, OH 44702 Canton, OH 44702 [Cite as in re Estate of DeChellis,

.]

Gwin, P.J.

{¶1} Appellants Patty and Daniel DeChellis appeal the March 24, 2020 judgment

entry of the Stark County Court of Common Pleas, Probate Division, denying their motion

to remove appellee David Dingwell as fiduciary of the estate.

Facts & Procedural History

{¶2} This appeal involves the estate of Philip DeChellis (“Decedent”). Decedent

died on July 21, 2016, survived by four adult children, Ann Heffner, Michael DeChellis,

Marc DeChellis, and appellant Daniel DeChellis. Decedent was also survived by his long-

term companion, appellant Patty DeChellis. Ann was originally appointed fiduciary of the

estate. After Ann was removed as executrix, appellee was appointed as administrator of

Decedent’s estate, with will annexed, for the purpose of completing the administration of

the estate.

{¶3} In 2018, the trial court found appellants guilty of having concealed,

embezzled, conveyed away, or having been in possession of monies owed to Decedent

and now belonging to his estate. The trial court rendered judgment against appellants in

the amount of $750,000, jointly and severally, with a ten-percent penalty from the date of

Decedent’s death. The trial court’s judgment entry ordered Ann, as executrix, to include

this judgment in an amended inventory. Appellants appealed. In Estate of DeChellis v.

DeChellis, 5th Dist. Stark No. 2018CA00153,

, this Court overruled

appellants’ assignments of error and found the trial court’s finding of guilt was supported

by the manifest weight and sufficiency of the evidence. We denied appellants’ motions

for reconsideration and en banc certification. Stark County, Case No. 2020CA00081 3

{¶4} In August of 2019, appellants filed a motion to vacate the 2018 concealment

entry. The trial court denied the motion to vacate and appellants appealed. In DeChellis

v. Estate of DeChellis, 5th Dist. Stark No. 2020CA00025,

, we overruled

appellants’ assignments of error and affirmed the trial court’s denial of the motion to

vacate.

{¶5} The trial court also issued a judgment entry finding Ann guilty of

concealment in the amount of $457,857.97. The trial court’s judgment entry specifically

ordered appellee to account for these amounts in his fiduciary account.

{¶6} On February 28, 2020, appellants filed a motion to remove appellee as the

estate fiduciary. Appellants allege appellee violated R.C. 2109.24 when he failed to

execute a settlement agreed to by all the beneficiaries. On March 3, 2020, appellee filed

a combined response to the motion to remove and motion for instructions. Appellee

requested the trial court’s instructions relative to the directive by the beneficiaries, due to

the fact that the court has to approve the fiduciary’s account and distributions. Appellants

filed a reply on March 9, 2020.

{¶7} The trial court held a hearing on appellants’ application to remove fiduciary

on March 16, 2020.

{¶8} Appellee testified that he received Exhibit A, a letter from the beneficiaries.

The beneficiaries all signed the letter addressed to appellee directing him to do the

following: immediately dismiss, with prejudice, Case No. 228240 in the Probate Court

(concealment of assets complaint against appellants); file with this Court a brief in Case

No. 2020 CA 00025 (appeal to vacate the concealment action against appellants) fully

concurring with appellants’ assignments of error and agreeing to waive oral argument; Stark County, Case No. 2020CA00081 4

immediately make filings in the Probate Court concurring with the exceptions to inventory

as to the $750,000 amount in the concealment action; immediately file a notice of

dismissal as to Probate Court Case No. 235513 (complaint to sell real estate and

declaratory judgment); immediately refrain from executing judgment on Probate Court

Case Nos. 228240 (concealment against appellants) and 231641 (concealment against

Ann Heffner); immediately grant Michael DeChellis right of first refusal to purchase the

Market Avenue property for $125,840 and assets of the restaurant business for $25,000;

immediately list the Lancaster Gate property for sale and allow appellants thirty days after

closing to vacate the premises; distribute funds in equal shares to the beneficiaries; and

immediately concur with the “global” settlement.

{¶9} Appellee stated his concern with the actions requested by the beneficiaries

is that they would violate previous court orders. Appellee testified that, as a fiduciary

appointed by the court, he is accountable not only to the beneficiaries, but to the court.

Accordingly, he filed the motion for instructions. Appellee testified the judgment entry

rendered by the court in the concealment action, Case Number 228240, contained a

specific directive with regards to including the amount of missing cash in the inventory as

an asset of the estate that needed to be accounted for. Appellee stated that while the

concealment judgment entry does not specifically prohibit him from dismissing Case

Number 228240, the entry requires a fiduciary to take certain steps, which appellee

believes will be violated if he dismisses the case. Appellee has the same concerns about

dismissing the concealment case against Heffner.

{¶10} Upon questioning by the court, appellee stated he is supposed to follow the

intent of Decedent, as set forth in his will. Stark County, Case No. 2020CA00081 5

{¶11} The trial court issued a judgment entry on March 24, 2020, denying

appellants’ application to remove fiduciary. The trial court found there was no evidence

presented that appellee violated his fiduciary duties or engaged in any conduct that would

cause the court to remove him as administrator. Rather, the trial court found appellee’s

concerns set forth in his response and motion for instructions demonstrates he is

cognizant of his duties as administrator to obey the court’s instructions and carry out the

terms of the last will and testament of Decedent. The trial court stated the efforts of the

beneficiaries to direct appellee to take actions that would potentially violate any of those

duties are improper. The trial court directed appellee to proceed with the administration

of Decedent’s estate in accordance with the court’s judgments, the Ohio Revised Code,

and Decedent’s last will and testament.

{¶12} Appellants appeal the March 24, 2020 judgment entry of the Stark County

Court of Common Pleas, Probate Division, and assign the following as error:

{¶13} “I. THE TRIAL COURT ERRED IN DENYING APPELLANTS’ MOTION FOR

REMOVAL OF ESTATE FIDUCIARY.”

I.

Motion for Instructions

{¶14} In appellants’ introduction portion of their brief, they contend appellee’s

motion for instructions was an improper request for an advisory opinion from the trial

court. Appellants did not separately include or separately assign this as error as required

by Appellate Rule 16. Thus, we may disregard this argument pursuant to Appellate Rule

12(A)(2). Stark County, Case No. 2020CA00081 6

{¶15} Even if we consider this argument, we find appellee’s motion for instructions

is not an improper request for an advisory opinion. Unlike cases in which a party attempts

to utilize a motion for instructions to obtain a ruling prematurely or about a speculative

future event or controversy that has not yet arisen, appellee filed the motion in direct

response to the directive by the beneficiaries. The motion for instructions directly impacts

and affects the issues in the case. Napier v. Ickes, 5th Dist. Licking No. 2018 CA 00081,

, appeal not allowed,

,

,

.

{¶16} In probate cases, executors, guardians, trustees, and other parties routinely

file motions for instructions that probate courts rule on, as the probate court is the superior

guardian of a ward and because the probate court has to ascertain the intent of the

testator in an estate case. R.C. 2111.50(A)(1) (probate court is superior guardian of

wards); Tootle v. Tootle,

,

(1986) (sole purpose of the

court should be to ascertain and carry out the intention of the testator); In re McCauley,

5th Dist. Stark No. 2013CA00188,

(motion for instructions as to

irrevocable trust); In re Fournas, 5th Dist. Licking Nos. 99CA52, 99CA53, 99CA55,

(April 5, 2000) (executor filed motion for instructions as to whether document

purporting to be an inter vivos revocation trust should be filed; probate court ruled on the

motion); In re Guardianship of Napier, 10th Dist. Franklin No. 05AP-405,

(trial court ruled on motion for instructions filed by guardian asking the probate court to

decide what funeral arrangements should be made and whether the children had a right

to be part of the funeral); In re Guardianship of Brockman,

,

(7th Dist. Mahoning 2005) (probate court granted motion for instructions filed Stark County, Case No. 2020CA00081 7

by the guardian); In re Estate of Bochik,

,

(8th Dist.

Cuyahoga 1985) (executor filed motion for instructions as to priority of payments of

claims; the probate court ruled certain claims must be treated as preferred claims and

shared proportionally).

Motion to Remove Fiduciary

{¶17} In their assignment of error, appellants contend the trial court committed

error in denying their motion for removal of appellee as fiduciary of Decedent’s estate.

Our standard of reviewing a probate court’s decision to remove or not remove a fiduciary

is the abuse of discretion standard. In re Estate of McCauley, 5th Dist. Stark No.

2013CA00221,

. The Supreme Court has defined the term abuse of

discretion as implying the court’s attitude is unreasonable, arbitrary, or unconscionable.

Blakemore v. Blakemore,

,

(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.,

,

(1993).

{¶18} In their motion, appellants sought appellee’s removal pursuant to R.C.

2109.24. R.C. 2109.24 provides, in pertinent part, “the court may remove any fiduciary *

* * for habitual drunkenness, neglect of duty, incompetency, or fraudulent conduct,

because the interest of the * * * estate that the fiduciary is responsible for administering

demands it, or for any other cause authorized by law.” The removal of a fiduciary pursuant

to this statute is within the sound discretion of the trial court. In re Estate of Jarvis,

,

(8th Dist. 1980).

{¶19} Appellants argue the trial court abused its discretion in denying their motion

for removal because appellee breached his fiduciary duty in failing to follow the directive Stark County, Case No. 2020CA00081 8

of the beneficiaries. Appellants contend appellee had an affirmative duty to comply with

their directive because the assets belong to the beneficiaries and appellee is obligated to

follow the unanimously-made direction about estate assets.

{¶20} We find the trial court’s denial of appellants’ motion to remove was not

unreasonable, arbitrary, or unconscionable. There was no evidence before the trial court

that appellee violated his fiduciary duties. Appellants take exception to appellee’s failure

to follow their directive. However, this was the result of the decisions rendered by the trial

court in its judgments throughout the various legal proceedings in this case. In re Estate

of McCauley, 5th Dist. Stark No. 2013CA00221,

. Appellee, as a

fiduciary of the estate, has a duty to follow the orders of the probate court. R.C. 2109.01

(fiduciary appointed by and accountable to the probate court); R.C. 2109.02 (duties

required by law and such additional duties as the court orders). Appellee also has the

duty to seek out and collect the assets belonging to Decedent at the time of his death and

include them in the estate. In re Estate of Jarvis,

,

(8th Dist. 1980).

{¶21} Appellee testified it is his duty to fulfill Decedent’s intent as set forth in the

will; if any questions arise as to Decedent’s intent in the construction of his will, the trial

court will ascertain the intention of Decedent. Solomon v. Central Trust Co. of

Northeastern Ohio,

,

(1992) (holding “it is the

fundamental duty of the courts to ascertain the intent of a testator in making a will”); In re

McCauley, 5th Dist. Stark No. 2013CA00188,

(trial court may ascertain

the intent of the settler by considering the necessary implication arising from the language

of the instrument as a whole); In re Estate of Endslow, 5th Dist. Delaware No. 99 CA 36, Stark County, Case No. 2020CA00081 9

(April 14, 2000) (attorney for estate is required to defend a decedent’s

last will and testament and the terms therein). The concealment judgment entry against

appellants specifically orders the estate fiduciary to include the $750,000 in cash as an

asset on the inventory for the estate.

{¶22} The concealment entry against Ann specifically ordered the estate fiduciary

to account for the amount ($457,857.97) in the fiduciary’s account. Removal of the

fiduciary is clearly discretionary with the trial court. We find no abuse of discretion in the

trial court’s determination that appellee did not breach his fiduciary duty by following these

specific judgment entries issued by the trial court and affirmed by this Court on appeal.

{¶23} Additionally, one of the central requirements of the directive by the

beneficiaries is that appellee dismiss both the concealment judgment against appellants

and the concealment judgment entry against Ann. However, unlike a traditional case in

which one beneficiary files an action against another beneficiary, a concealment action is

a quasi-criminal, special statutory proceeding that notifies the probate court of alleged

misconduct. Estate of DeChellis v. DeChellis, 5th Dist. Stark No. 2018CA0153, 2019-

Ohio-3078. The court then must investigate the charge and make a finding of guilt or

innocence.

During the proceeding, the court examines the respondent and witnesses.

If the person is found guilty, the probate court assesses damages and, “in all cases,

except when the person found guilty is the fiduciary, the probate court shall render

judgment in favor of the fiduciary * * * against the person found guilty for the amount of

moneys * * * together with ten percent penalty and all costs of the proceedings or

complaint * * *.” R.C. 2109.52. In this case, the trial court issued two separate Stark County, Case No. 2020CA00081 10

concealment judgement entries finding appellants and Ann guilty of concealment and

rendering judgment in favor of the fiduciary.

{¶24} During the hearing, both appellee and the trial judge confirmed it was the

court’s directive in the concealment actions to proceed and collect the money. Upon

questioning by the trial court, appellee testified the trial court was not willing to vacate the

two concealment judgments. Accordingly, the trial court did not abuse its discretion in

denying the motion to remove appellee as fiduciary. The concealment judgment is a

judgment of the court, with a finding of guilty, and not a proceeding that the beneficiaries

can order a fiduciary to dismiss.

{¶25} Appellants contend the trial court abused its discretion in denying their

motion because the “specific language” of the court’s orders does not prohibit appellee

from taking the actions directed by the beneficiaries, particularly the dismissal of the

concealment actions. Appellants argue that since the court’s orders in the concealment

actions do not say “this action cannot be dismissed,” appellee is breaching his fiduciary

duty by not doing so as ordered by the beneficiaries. We find no abuse of discretion in

the trial court’s determination. Appellee repeatedly testified that simply because the

court’s orders do not specifically state he “cannot dismiss” the concealment actions, the

specific language contained in the court’s orders require him to take certain steps, which

appellee cannot complete if he dismisses the concealment cases. Specifically, the trial

court ordered the fiduciary to include the amounts in the concealment actions in the

inventory and account as assets of the estate.

{¶26} Finally, appellants make the argument that the beneficiaries may disclaim

or renounce their rights under the will and that the two remaining beneficiaries not Stark County, Case No. 2020CA00081 11

involved in the concealment actions, Michael and Marc, through their voluntary and

knowing agreement to the directive, deliberately disclaimed and/or renounced their

testamentary right to the concealment judgments. Appellants conclude the trial court

committed error in denying the motion to remove fiduciary because appellee wrongly did

not recognize these disclaimers/renouncements, thus breaching his duty of loyalty.

{¶27} We find appellants’ argument to be without merit. The cases cited by

appellants involve the renouncing or disclaiming of a specific gift in the will, or a

beneficiary disclaiming his or her beneficial share provided in the will. In this case, the

concealment judgements are not specific gifts or beneficial shares derived from

Decedent’s will, but come from a determination and order of the trial court. Unlike when

a testator gives a beneficiary a specific gift, bequest, or share, a concealment action is a

quasi-criminal, special statutory proceeding, in which the trial court investigates a charge

and makes a finding of guilt or innocence. Estate of DeChellis v. DeChellis, 5th Dist.

Stark No. 2018CA00153,

. Appellants do not cite any authority for the

proposition that a beneficiary can disclaim or renounce a court-ordered finding of guilt

and the associated penalty in a concealment case without approval from the trial court. Stark County, Case No. 2020CA00081 12

{¶28} Based on the foregoing, we find the trial court did not abuse its discretion in

denying appellants’ motion to remove fiduciary. Appellants’ assignment of error is

overruled.

{¶29} The March 24, 2020, judgment entry of the Stark County Court of Common

Pleas, Probate Division, is affirmed.

By Gwin, P.J.,

Wise, John, J., and

Delaney, J., concur