IN THE SUPREME COURT OF OHIO

Hallie Schiavoni,

Appellee,

V.

Brian R. Roy, et al.,

Appellant.

Case No. 2012-1906

On Appeal from the MedinaCounty Court of Appeals,Ninth Appellate DistrictCourt of AppealsCase No. 11 CA0108-M

MEMORANDUM IN RESPONSE TO APPELLANT'SREQUEST FOR JURISDICTION

Patricia J. Schraff (0006830)John P. Thomas (0079630) (Counsel of Record)Schraff & King Co., L.P.A.2802 S.O.M. Center Rd., Suite 200Willoughby Hills, Ohio 44094(440) 585-1600 phone(440) 585-1601 faxpschraff@schraffkin .g comjthomaskschraffkin .̂ comCounsel for Hallie Schiavoni, Appellee

Ronald N. Towne (0019622)Ann L. Wehener (0063216)388 South Main St., Suite 402Akron, Ohio 44311(330) 253-2227(330) 253-1261 (fax)Attorneys for Brian R. Roy, Appellant

DEC 10 NB 2

DEC 10 2012CLERK OF COURT

SUPREME CUUR^ OF OHIO

CLER&( OF COURTSUPREIViF COURT CF OHIO

TABLE OF CONTENTSPage

EXPLANATION OF WHY THIS CASE IS NOT ACASE OF PUBLIC OR GREAT GENERAL INTEREST ..........................................................1

STATEMENT OF CASE AND FACTS ......................................................................................4

ARGUMENT IN OPPOSITION TO PROPOSITIONS OF LAW ..............................................7

Proposition of Law No. 1: The Probate Court has concurrent jurisdictionwith, and the same powers at law and in equity as, the general division ofthe court of common pleas to issue writs and orders, and to hear anddetermine actions with respect to a probate estate or post-death dispute thatinvolves a designation or removal of a beneficiary of an annuity contract ............... 7

Proposition of Law No. 2: This Court should not accept jurisdiction in adiscretionary appeal when a losing party requests a second review of a trialcourt, as finder of fact, which is already determined not to have lost itsway or created a manifest miscarriage of justice ....................................................... 10

A. The Probate Court ruling that Jean Ruth Roy lacked capacity wasnot against the manifest weight of the evidence .............................................10

B. The Probate Court ruling that Mr. Roy exerted undue influence overJean Ruth Roy was not against the manifest weight of the evidence...........11

Proposition of Law No. 3: Attorney fees may be awarded when the Courtdetermines that the Defendant acted in bad faith ......................................................12

Proposition of Law No. 4: Attorney fees are recoverable from an estate toan attorney employed by an heir or beneficiary when the legal serviceswere rendered to the benefit of the estate ...................................................................13

CONCLUSION ...........................................................................................................................15

CERTIFICATE OF SERVICE ...................................................................................................16

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EXPLANATION OF WHY THIS CASE IS NOT ACASE OF PUBLIC OR GREAT GENERAL INTEREST

This is a discretionary appeal. The only question is whether this case presents at least

one issue of public or great general interest since there is no constitutional issue involved, which

the Appellant, Brian Roy ("Mr. Roy"), readily concedes in his Memorandum in Support of

Jurisdiction. According to Mr. Roy, what makes this case of public or great general interest is

the need for the Ohio Supreme Court to provide guidance to an increasing population of parents

on how to make unequal gifts to their children. To a much lesser extent, Mr. Roy claims that the

issues of whether a probate court has jurisdiction to hear cases involving annuities and award

attorney fees without an award of punitive damages are also issues of public or great general

interest.

Mr. Roy asks the question "what does a parent need to do to insure that such gifts

(unequal gifts to children) will not be nullified and their intent thwarted by a probate court which

could wrongfully determine said gifts were unfair to other children or that the parent lacked

capacity?" (Emphasis Added). Within this question lies the crux of Mr. Roy's attempt to invoke

the jurisdiction of this Court. He contends that the Probate Court made the wrong decision. He

contends that Probate Court "totally ignored evidence that the decedent was competent ..."

Never mind that Mr. Roy conveniently neglects to mention any of the evidence and expert

testimony that the Decedent, Jean Ruth Roy, was not competent and that it was Mr. Roy who

essentially made the gifts to himself rather than his late mother making the gifts of her own

volition. Essentially, Mr. Roy is pursuing nothing more than the run-of-the-mill weight of the

evidence appeal. There is no claim by Mr. Roy that the Court of Appeals applied bad law or an

incorrect standard of review, but rather Mr. Roy merely wants this Court to conduct another

review of the evidence after obviously being dissatisfied with the Probate Court verdict and

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outcome of the first review conducted by the Court of Appeals. Mr. Roy should not get a second

bite at the apple.

If parents need guidance on how to make unequal gifts, they need not go to the Ohio

Supreme Court for that guidance. They need only go to a competent estate planning or elder law

attorney who can in turn refer to the large body of case law and statutory provisions for all of the

guidance they need, including R.C. 1337.58 which expressly lays out the manner in which a

principal can empower an agent to make gifts, including during the principal's incapacity. More

than enough guidance can be found in the string of decisions made by this Court involving undue

influence, conversion of assets, gifting powers in a power of attorney, and the requisite

testamentary capacity to execute a will or trust or make a valid inter vivos gift. Mr. Roy views

this as a case in which allegedly valid gifts to a child were wrongfully disallowed by the Probate

Court. In actuality, the Appellee Hallie Schiavoni ("Ms. Schiavoni"), the Probate Court and the

Ninth District Court of Appeals ("Court of Appeals") all agree that this is a case where a son,

named as his mother's attorney-in-fact and therefore acting as a fiduciary, exerted undue

influence and breached his fiduciary duty by making, causing to be made, directing, assisting or

allowing his mother to transfer to him well in excess of $135,000.00 under the guise of a gift,

with no contemporaneous gifts of any significant amount to his mother's only other child; and all

while his mother was in an assisted living facility, diagnosed with a variety of medical and/or

psychological conditions, and lacking capacity at the time the transfers/alleged gifts were made.

These are the gifts that Mr. Roy contends the general public needs guidance on how to make

without risk of being questioned or invalidated by a probate court. Parents need no such

guidance. More importantly, there is no public or general interest in having the Ohio Supreme

Court instruct children how to make gifts to themselves of large amounts of a parent's monies

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when the parent lacks or may lack capacity to do so and the parent's power of attorney does not

expressly authorize any such gifts without making any gifts to the parent's other children.

Mr. Roy's next contention that "the law is unsettled as to the probate court's jurisdiction

over annuities" is misguided. Mr. Roy implies that this issue is of public or great general interest

based upon his speculation that it is "sure to continue to arise." While speculation that an issue is

going to again arise does not generate pubic or great general interest, the reality is that this issue

is not at all likely to arise in the future not only because the Ohio Revised Code and case law in

this area is well-established, but also because it is thoroughly addressed in legislation now

pending which has already been approved in the Ohio House of Representatives and is set for

approval this week in the Ohio Senate in the form of HB 479.

Mr. Roy lastly claims that the "law is unsettled" as to when attorneys' fees can be

awarded without an award of punitive damages. As explained further below, this is not the first

case when attorney fees were awarded without an award of punitive damages. In this case, the

Probate Court found, based upon competent, credible evidence that has already once been

reviewed on appeal that Mr. Roy was liable for undue influence, conversion, breach of fiduciary

duty, unjust enrichment, and bad faith. Having the award of attorneys' fee reversed under the

facts and circumstances of this case would only serve to condone the actions of Mr. Roy, and

neither raises nor serves any public or general interest. To the contrary, this case represents the

textbook example of when existing, established law should be applied to award attorney fees.

Given the facts and circumstances of this case, including especially the findings of the

Probate Court, Mr. Roy cannot meet his burden to demonstrate that this case involves issues of

public or great general interest.

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STATEMENT OF CASE AND FACTS

In 2000, Jean Ruth Roy executed the following documents:

• Last Will and Testament ("Will") naming Mr. Roy as Executor and Ms. Schiavonias Alternate Executor, and naming her only two children, Mr. Roy and Ms.Schiavoni, as equal beneficiaries of her Estate.

• Durable Power of Attorney ("DPOA") naming Mr. Roy as her attorney-in-factand restricting his gifting powers to $5,000 per year to himself and only if heequally gifted to his sister, Ms. Schiavoni.

In or about 2003, Jean Ruth Roy was diagnosed with dementia of the Alzheimer's type

causing her cognitive functioning to decline for the remainder of her life. In early 2005, Jean

Ruth Roy moved to the Inn at Medina, an assisted living facility only fifteen minutes from Mr.

Roy's house.

From January 1, 2005 until Jean Ruth Roy's death, Mr. Roy used his status as fiduciary

to pillage her assets. Specifically, he outright gifted himself funds to pay his own mortgage,

used her credit card for his own benefit, opened a joint bank account with her funds, and

purchased a Standard Life Annuity naming his mother as owner and himself as the sole

beneficiary. Mr. Roy provided no written evidence that his mother ever explicitly authorized his

actions, and Mr. Roy relied solely on his self-serving testimony that she verbally approved of his

activities. As to the Standard Life Annuity, the record revealed that Mr. Roy signed the

application using the Power of Attorney for his mother and that Jean Ruth Roy never signed the

application, nor do her initials appear anywhere on it.

From July 11, 2006 until November 1, 2006, Dr. Canice Barnett, Ph.D. ("Barnett"), a

psychologist, treated Jean Ruth Roy and diagnosed her with anxiety disorder and dementia with

depression and terminated treatments for lack of progress because Jean Ruth Roy was upset that

she could not remember who Dr. Barnett was, or why she was there from session to session.

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On January 13, 2007 and February 1, 2007, Jean Ruth Roy was assessed, and a caregiver

at the Inn at Medina testified at trial that she saw Jean Ruth Roy on a daily basis and observed

that Jean Ruth Roy was dependent on total assistance for her care, needed constant supervision to

prevent harm to herself and others, was very confused and moody, needed a lot of reassurance,

and could not communicate her needs.

On February 27, 2007, Mr. Roy e-mailed Jean Ruth Roy's financial advisor and using the

Power of Attorney requested that the financial advisor immediately send a change of beneficiary

form for a Hartford Annuity owned by Jean Ruth Roy, which had named Mr. Roy and Ms.

Schiavoni each as 50% beneficiaries.

On February 29, 2007, Mr. Roy filled out the Hartford Annuity change of beneficiary

form inserting himself as 100% beneficiary. He then had his mother sign the form so that he

could send it to Hartford. Jean Ruth Roy had difficultly signing her name, which floated above

the signature line and she mistakenly wrote February 29, 2007, as her date of birth.

On March 8, 2007, Jean Ruth Roy signed a First Codicil to her Will removing Ms.

Schiavoni as Alternate Executor and inserting Mr. Roy's wife, Debra E. Roy ("Debra Roy"), as

Alternate Executor.

On February 20, 2008, Jean Ruth Roy executed an Irrevocable Living Trust Agreement

(the "Trust") to qualify for Veterans Affairs benefits, naming Mr. Roy as Trustee and Debra Roy,

as Successor Trustee, and named Mr. Roy and Ms. Schiavoni as equal beneficiaries

On December 12, 2008, Jean Ruth Roy died in Medina, Ohio.

On February 17, 2009, Mr. Roy submitted a death benefit claim to Standard Life

Insurance and received the death benefit proceeds from the Standard Life Annuity. He also

began receiving the monthly an. -̂iuitized payments from Jean Ruth Roy's Hartford Annuity.

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On February 17, 2010, Ms. Schiavoni filed a Complaint against Mr. Roy, individually,

and as Trustee of the Jean Ruth Roy Irrevocable Trust alleging various causes of action related to

Mr. Roy exerting undue influence and breaching his fiduciary duty.

On April 27, 2010, Mr. Roy filed an Answer to the First Amended Complaint, along with

a Counterclaim against Ms. Schiavoni, and a Third-Party Complaint against Ms. Schiavoni's

daughter (and Mr. Roy's niece), Venetia Lynn Stadler ("Stadler").

On December 20-24, 2010, and January 10, 2011, the Probate Court held a bench trial.

During the trial, Dr. David Feldman, a geriatric psychiatrist, testified that he reviewed

medical records of Jean Ruth Roy and opined that in 2003 Jean Ruth Roy began having an

ongoing level of cognitive decline evidenced by her short-term memory impairment and

orientation problems that continued throughout the rest of her life. Dr. Feldman testified that her

cognitive deficits were further verified in 2005 when she thought someone was trying to murder

her, and in 2006 when she scored only 18 out of 30 on a Mini-Mental Status Examination, which

indicated moderate dementia.

On October 31, 2011, the Probate Court issued a final, appealable Judgment Entry,

finding Mr. Roy liable for conversion, breach of fiduciary duty, fraud, undue influence, unjust

enrichment, bad faith, failure to account for assets belonging to the Estate, and for money

damages in favor of Ms. Schiavoni in the amount of $70,000.00, and in favor of the Estate in the

amount of $135,572.22. The Probate Court awarded prejudgment interest in favor of Ms.

Schiavoni in the amount of $35,105.12 as of November 1, 2011, with interest to accrue at 4.0%

per annum, and awarded Ms. Schiavoni her attorneys' fees in the amount of $74,655.01. The

Probate Court further denied all claims asserted by Mr. Roy against Ms. Schiavoni and Ms.

Stadler, and voided the Trust.

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ARGUMENT IN OPPOSITION TO PROPOSITIONS OF LAW

Proposition of Law No. 1: The Probate Court has concurrent jurisdiction with, andthe same powers at law and in equity as, the general division of the court of commonpleas to issue writs and orders, and to hear and determine actions with respect to aprobate estate or post-death dispute that involves a designation or removal of abeneficiary of an annuity contract.

R.C. 2101.24(B)(1)(b) provides that the probate court has concurrent jurisdiction with the

general division over "any action that involves an inter vivos trust or a power of attorney." Fox v.

Stockmaster, 3rd Dist., Nos. CA13-01-34 & CA13-05-35, 2002-Ohio-2824, 2002 Ohio App.

LEXIS 2892, P62 (June 5, 2002). R.C. 2101.24(A)(1)(m) further provides that the probate court

has exclusive jurisdiction to direct and control the conduct of fiduciaries and settle their

accounts. The Probate Court properly determined that Mr. Roy obtained the Standard Life

Annuity by unlawfully exercising the power of attorney and that as attorney-in-fact, he usurped

Jean Ruth Roy's Hartford Annuity by requesting, completing, and submitting the change of

beneficiary designation to Hartford naming himself as sole beneficiary.

Additionally, R.C. 2101.24(C) confers the Probate Court with jurisdiction over all assets

in this case, including the annuities, as R.C. 2101.24(C) provides that the Probate Court has

plenary power at law and in equity to dispose fully of any matter that is properly before the court

unless the power is specifically limited or denied by a provision of the Revised Code. Id.; Bank

One Trust Co., N.A. v. Scherer, 10th Dist., Nos. 08AP-494, 08AP-517 & 08AP-526, 2009-Ohio-

6192, 2009 Ohio App. LEXIS 5201, P30 (Nov. 24, 2009) (probate court has a broad authority to

address collateral matters and properly exercised that jurisdiction over matters both necessary to

and inextricably entwined with the principal matter before the court); Estate of LaMar v. LaMar,

No. CA2070-M, 1992 Ohio App. LEXIS 3335, *5 (June 24, 1992) (probate court has jurisdiction

to decide questions of title to claimed assets of an estate). This case is properly before the

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Probate Court, which is charged with ruling on disputes involving probate estates, powers of

attorney, conversion of a decedent's assets, and inter vivos gifts such as those involving Mr. Roy

and Jean Ruth Roy's Estate. Furthermore, the annuities at issue in this case are inextricably

entwined with the probate estate as Mr. Roy acted in his capacity as attorney-in-fact to transfer

and abscond with funds belonging to the Decedent. There is no statute limiting or denying the

Probate Court's jurisdiction in this case, nor did Mr. Roy cite one.

Mr. Roy first argues that Burns v. Daily, 116 Ohio App.3d 693, 683 N.E.2d 1164 (11th

Dist. 1996) provides that title to an asset must rest in the decedent upon his or her death in order

to be included in a probate estate. Nevertheless, he completely omits from his Memorandum that

Rudloff v. Efstathiadis, llth Dist., No. CA2002-T-0119, 2003-Ohio-6686, 2003 Ohio App.

LEXIS 5943, (December 5, 2003), not only distinguished Burns, but also held that a probate

court has jurisdiction over an action to recover funds passed to a third party by inter vivos

transaction where the validity of the underlying transfer is challenged.

Mr. Roy next cites Adams v. Adams (July 14, 2003), 12 Dist. No. CA2002-09-087, 2003

WL 21638002 arguing that these annuities are "return annuities" which are similar to life

insurance policies and should not be included in a decedent's probate estate. Ohio law on this

issue is clear. As aforementioned, probate courts have jurisdiction not only over assets in a

decedent's estate, but also over non-probate assets via R.C. 2101.24(B)(1)(b), R.C.

2101.24(A)(1)(m), and R.C. 2101.24(C).

Mr. Roy then argues that the cases cited in the Court of Appeals opinion are

distinguishable because they did not involve annuities. Ironically, he then cites Levy v.

Thompson, 2"d Dist., No. CA20641, 2006-Ohio-5312, 2006 Ohio App. LEXIS 5292, (October 6,

2006), a case in which the Second District affirmed a probate court's exercise of jurisdiction over

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non-probate annuities pursuant to R.C. § 2101.24(C). Similar to this case, the Levy court held

that the probate court had jurisdiction over an agent misusing a power of attorney to

misappropriate a non-probate annuity. See also, In re Estate of Boone, 190 Ohio App.3d 799,

808, 2010-Ohio-6269, 944 N.E.2d 307, 314 (7th Dist. 2010) (probate court had subject matter

jurisdiction to determine whether proceeds of a life insurance policy belonged to the decedent's

estate). Seeking to distinguish Levy, Mr. Roy claims that Levy hinged on misuse of a power of

attorney over an annuity, and did not directly determine in general that the probate court has

jurisdiction over annuities. This is a distinction without a difference. In fact, Levy is not

distinguishable from this case because analogous to Levy, Mr. Roy also misused his power of

attorney and unlawfully converted his mother's annuities.

Perhaps most relevant, legislation is currently pending to codify the aforementioned case

law and explicitly extend subject matter jurisdiction to probate courts over cases involving non-

probate annuities. In House Bill 479, submitted in the 129th General Assembly in 2012, the Ohio

legislature seeks to amend R.C. 2101.24(B)(1)(c)(i), and the new statute will provide as follows

(Emphasis added):

(B)(1) The probate court has concurrent jurisdiction with, and thesame power at law and in equity as, the general division of thecourt of common pleas to issue writs and orders, and to hear anddetermine actions as follows:

(c) Subject to section 2101.31 of the Revised Code, any actionwith respect to a probate estate, guardianship, trust, or post-deathdispute that in-voives any of the following:

(i) A designation or removal of a beneficiary of a life insurancepolicy, annui contract, retirement plan, brokerage account,security account, bank account, real property or tangible personalproperty;

As of December 7, 2012, HB 479 has passed the Ohio House of Representatives and was

favorably recommended for passage by the Senate Judiciary Committee. It is anticipated that

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HB 479 will receive an Ohio Senate floor vote during the week of December 10, 2012 and upon

passing the Ohio Senate, it will likely proceed to the Governor for review and passage.

For the foregoing reasons, both statutory law and case law grant probate courts with

jurisdiction over non-probate assets, including annuities, and this issue is not novel to this Court.

As such, there is no public or great general interest justifying the Court accepting jurisdiction.

Proposition of Law No. 2: This Court should not accept jurisdiction in adiscretionary appeal when a losing party requests a second review of a trial court, asfinder of fact, which is already determined not to have lost its way or created amanifest miscarriage of justice.

When determining whether a judgment of a trial court is against the manifest weight of

the evidence, an appellate court "weighs the evidence and all reasonable inferences, considers

the credibility of the witnesses and determines whether in resolving conflicts in the evidence, the

finder of fact clearly lost its way and created such a manifest miscarriage of justice that the

judgment must be reversed and a new trial ordered. Eastley v. Volkinan, 132 Ohio St. 3d 328,

2012-Ohio-2179, ¶20. Regarding civil cases, the Ohio Supreme Court has held that judgments

supported by some competent, credible evidence going to all the essential elements of the case

will not be reversed by a reviewing court as being against the manifest weight of the evidence.

C. E. Morris Co. v. Foley Constr. Co., 54 Ohio St. 2d 279, 280-281, 376 N.E.2d 578, 579 (1978).

A. The Probate Court ruling that Jean Ruth Roy lacked capacity was not againstthe manifest weight of the evidence.

The test to be used to determine mental capacity is the ability of the principal to

understand the nature, scope, and extent of the business she is about to transact." Cook v.

Reising, 181 Ohio App.3d 546, 2009-Ohio-1131, ¶ 17 (9th Dist.).

This Court has held that "[t]estamentary capacity exists when the testator has sufficient

mind and memory: First, to understand the nature of the business in which he is engaged; second,

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to comprehend generally the nature and extent of his property; third, to hold in his mind the

names and identity of those who have natural claims upon his bounty; fourth, to be able to

appreciate his relation to the members of his family." Niemes v. Niemes, 97 Ohio St. 145, (1917).

After weighing the evidence and all reasonable inferences, including the credibility (or

lack thereof) of Mr. Roy, the Probate Court and the Court of Appeals both determined that

sufficient competent, credible evidence existed supporting the determination that there was clear

and convincing evidence that Jean Ruth Roy lacked the requisite mental capacity to change

beneficiary designations on the Hartford Annuity, authorize Mr. Roy to obtain a Standard Life

Annuity, open a joint bank account with Mr. Roy, or appreciate the quantity, size, and frequency

of monetary gifts Mr. Roy received from her. Credible testimony from Dr. Feldman and Dr.

Bamett was presented; and Mr. Roy's testimony was determined to be not credible. Thus, this

Court should not authorize a discretionary appeal and re-examine the Court of Appeals opinion

holding that the Probate Court's decision was not against the manifest weight of the evidence.

B. The Probate Court ruling that Mr. Roy exerted undue influence over Jean Ruth

Roy was not against the manifest weight of the evidence.

The elements of undue influence are: (1) a susceptible party; (2) another's opportunity to

exert influence; (3) the fact of improper influence exerted or attempted; and (4) a result showing

the effect of such improper influence. Jackson v. Jackson, 2008-Ohio-1482 (3rd Dist. 2008).

When a confidential or fiduciary relationship exists between a donor and donee through a

power of attorney, the transfer is looked upon with some suspicion that undue influence may

have been brought to bear on the donor by the donee. Ament v. Reassure America Life Insurance

Co., 180 Ohio App.3d 440, 905 N.E.2d 1246, 2009-Ohio-36 (Ohio App. 8 Dist. 2009).

Throughout this case, and as evidenced by the Court of Appeals decision on September

28, 2012, Mr. Roy has argued that it was reasonable for his mother to gift him assets due to his

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devotion to her, and an alleged history of problems between Jean Ruth Roy and Ms. Schiavoni.

However, the Probate Court, as finder of fact, did not find Mr. Roy credible. Furthermore, as

fiduciary, Mr. Roy had the burden of proof to rebut the presumption of undue influence and he

failed to do so. There also existed sufficient competent, credible evidence from Ms. Schiavoni

and others demonstrating that he did in fact exert undue influence over his mother. This is

starkly evidenced by Mr. Roy's claim that on one hand Ms. Schiavoni never visited their mother,

and on the other hand that Ms. Schiavoni fought with their mother in December 2006 and stole

items from the room. Moreover, evidence existed that Mr. Roy used his mother's funds: (1) to

make donations to his favorite charities, including his Lutheran ministry even though his mother

was not Lutheran; (2) to purchase dietary supplements at full price from a company he owned;

and (3) to obtain car washes, gas, etc., even though she did not own a car and did not drive An

abundance of evidence exists supporting the Probate Court's determination that Mr. Roy failed to

rebut the presumption of undue influence. As such, this Court should not accept jurisdiction so

as to authorize another review of the manifest weight of the evidence.

Proposition of Law No. 3: Attorney fees may be awarded when the Courtdetermines that the Defendant acted in bad faith.

Mr. Roy contends that attorneys' fees may only be awarded as an element of

compensatory damages with an award of punitive damages according to Zappitelli v. Miller, 114

Ohio St.3d 102, 2007-Ohio-3251 (2007). In short, Mr. Roy is way off the mark.

Since Zappitelli, this Court has consistently recognized that attorneys' fees may be

recovered when the losing party acted in bad faith, which the Probate Court determined had

occurred in this case. As an example, the Court of Appeals cited several cases in which

attorneys' fees were awarded due to the bad faith of the losing party. State ex rel. Waiters v.

Szabo, 129 Ohio St.3d 122, 950 N.E.2d 546 (2011); citing Wilborn v. Bank One Corp., 121 Ohio

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St.3d 546, 2009-Ohio-306, 906 N.E.2d 396 (2009) ("attorneys fees may be awarded when the

prevailing party demonstrates bad faith on the part of the unsuccessful litigant"). Reagans v.

MountainHigh Coachworks, Inc., 117 Ohio St.3d 22, 881 N.E.2d 245 (2008) (parties are

responsible for their own attorneys fees absent bad faith by the unsuccessful litigant). State ex

rel. Citizen Action for a Livable Montgomery v. HanZilton Cty. Bd of Elections, 115 Ohio St.3d

437, 875 N.E.2d 902 (2007) (prevailing party is entitled to attorney fees when the party against

whom the fees are taxed acted in bad faith). Moreover, the precedent in the Court of Appeals is

to award attorneys' fees when the unsuccessful litigant acted in bad faith. Technical Constr.

Specialties, Inc. v. New Era Builders, Inc., 9th Dist. No. 25776, 2012-Ohio-1328, ¶ 26, 2012

WL 1059907 (recovery of attorneys fees may be permitted if losing party has acted in bad faith).

While Mr. Roy asserts that this Court needs to "reconcile" the Zappitelli case with this

case, such reconciliation is unnecessary. In order to support an award of attorneys' fees, the

Probate Court merely had to determine that the losing party acted in bad faith, which it did. State

ex rel. Durkin v. Ungaro, 39 Ohio St. 3d 191, 193, 529 N.E.2d 1268 (1988). Not only did Mr.

Roy not contest the Probate Court finding of bad faith, he also virtually concedes that the

Zappitelli case did not involve an allegation of bad faith and therefore it is inapplicable to the

case at bar. As such, both decisions rightfully stand independent of one another, and need not be

reconciled by a discretionary appeal to this Court.

Proposition of Law No. 4: Attorney fees are recoverable from an estate to anattorney employed by an heir or beneficiary when the legal services were renderedto the benefit of the estate.

Mr. Roy claims that the Probate Court erred by authorizing the Estate to pay Ms.

Schiavoni's attorneys fees under the "common fund theory." Specifically, Mr. Roy argues that

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because he will not receive a greater sum after returning the misappropriated funds to the Estate,

the law prohibits Ms. Schiavoni from receiving attorneys' fees from the Estate.

Mr. Roy and Ms. Schiavoni agree that In re Keller, 65 Ohio App.3d 650, 584 N.E.2d

1312 (8th Dist. 1989), stands for the proposition that the Probate Court may authorize payment of

reasonable fees from an estate to an attorney employed by an heir or beneficiary where the legal

services were rendered to the benefit of the estate. Id; see also In re Colosimo, 104 Ohio

App.342, 149 N.E.2d 31 (2nd Dist. 1957) (attorneys fees awarded on "the equitable doctrine that

where one has created, augmented or preserved a fund, he may be compensated therefrom").

Even more, In re Estate of Fugate, 86 Ohio App.3d 293, 620 N.E.2d 966 (4th Dist. 1993)

held that "a probate court may allow payment of reasonable fees from the estate to an attorney

employed by an heir or beneficiary where such attorney's services were necessarily and

successfully rendered to the benefit of the whole estate." The Fugate court further cited In re

Estate of Brown, 83 Ohio App.3d 540, 615 N.E.2d 319 (12th Dist. 1992), which held that "[T]he

test of benefit to the estate being whether or not all the beneficiaries or distributes of the estate,

in their capacities as such, have become entitled to receive from the assets of the estate, when

distributed, greater sums than those which they would have received had such attorney's services

not been rendered." Id. (Emphasis added).

Here, the Court of Appeals applied the proper standard for the common fund theory in

that Mr. Roy in his capacity as a beneficiary of the Estate will receive more assets from the

Estate than before Ms. Schiavoni brought her action on behalf of the Estate. Mr. Roy claims that

Ms. Schiavoni's actions have diminished the Estate because the fiduciary is authorized to pay her

attorneys' fees from the Estate corpus. In reality, the Estate will have about $135,000.00 more

assets in it on account of Ms. Schiavoni's lawsuit. Mr. Roy's argument is contrary to itself and

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no public or general interest will be served by disallowing attorney fees to the prevailing party

who recovers estate assets plundered by a fellow beneficiary. Thus, further appellate review of

this proposition of law is unnecessary, and this Court should not certify this appeal.

CONCLUSION

Brian Roy cites three grounds in support of his argument to invoke the jurisdiction of this

Court. He places his greatest emphasis urging this Court to re-weigh all the evidence in the case,

which is not its function. He then asks the Court to accept jurisdiction because part of the award

included annuities, which are inextricably entwined with the rest of the matter involving a

probate estate, misuse of the power of attorney, the same beneficiaries and parties, and claims

involving the disposition of all the Decedent's assets after her death. All of these matters are

properly determined by, and well within the jurisdiction of, a probate court. He lastly requests

this Court re-examine well-established law granting attorneys' fees to the prevailing party on the

basis of bad faith, and also authorizing the probate estate to pay attorneys' fees based on the

common fund theory.

For the foregoing reasons, this is not a case of public or great general interest, and this

Court should not accept jurisdiction of the discretionary appeal.

Respectfully submitted,

RIC.IA J. SCHRAFF (0006830)JOHN P. THOMAS (0079630)SCHRAFF & KING CO., L.P.A.2802 S.O.M. Center Rd., Suite 200Willoughby Hills, Ohio 44094(440) 585-1600 phone(440) 585-1601 faxAttorneys for Appellee Hallie Schiavoni

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CERTIFICATE OF SERVICE

A copy of the foregoing was sent by regular U.S. mail, postage prepaid, this 7th day of

December, 2012, to:

Ronald N. Towne, Esq.Leiby, Hanna, Rasnick, Towne, Evanchan,Palmisano & Hobson, LLC388 South Main St., Suite 402Akron, Ohio 44311

AttoYneys for Defendant-Appellant Brian R. Roy

Mary Jo Morse, Esq.Palecek, Mcllvaine, Hoffmann &Morse Co., L.P.A.273 Main St., Suite 200Wadsworth, OH 44281

Attorneys for the Estate of Jean R. Roy

t" .TRICIA J. SCHRAFF (0006830)

JOHN P. THOMAS (0079630)SCHRAFF & KING CO., L.P.A.Attorneys for Plaintiff-Appellee Hallie Schiavoni

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