COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67026 AND 67041 JOSEPH F. BAKER, EXECUTOR, ETC. : : : JOURNAL ENTRY Plaintiff-Appellant : : AND vs. : : OPINION LEO C. YAHNER, ET AL. : : : Defendant-Appellees : : DATE OF ANNOUNCEMENT OF DECISION: APRIL 6, 1995 CHARACTER OF PROCEEDING: Civil appeal from Probate Court Case No. 1080405 JUDGMENT: CASE NO. 67026 DISMISSED; CASE NO. 67041 AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: LEWIS A. ZIPKIN MARY E. R. BARTHOLIC CORINNE B. KATZ Zipkin & Fink 2460 Fairmount Boulevard #224 Cleveland, Ohio 44106 For Defendant-Appellees: DAVID J. MURRAY 795 I.N.A. Building 14701 Detroit Avenue Lakewood, Ohio 44107 Catholic Charities Corp.: ELIZABETH MONIHAN Squire, Sanders & Dempsey 4900 Society Center 127 Public Square Cleveland, Ohio 44114 (Continued) - 2 - APPEARANCES CONTINUED: Cleveland Society for the BILL CARLIN Blind: NICHOLAS PAPA 29425 Chagrin Boulevard Pepper Pike, Ohio 44124 Holy Family Cancer Home: JOSEPH A. WALICK 5225 Thoreau Drive Parma, Ohio 44129 Red Cross: TONY FITZGIBBONS LAURA WALLENS SAVREN 3300 BP America Building 200 Public Square Cleveland, Ohio 44114 Estate of Elizabeth Ring: GERALD PORTER Donahue & Scanlon 3300 Terminal Tower 50 Public Square Cleveland, Ohio 44113 - 3 - O'DONNELL, J.: On July 8, 1990, Elizabeth R. Ring, an elderly widow, discovered that three of her bank books were missing from her home and could not be located. She telephoned Leo Yahner, who was her landlord and a friend since she had met him some thirty years ago, to see if he could help her locate the missing bank books. Over the years, Yahner had assisted her with banking, shopping, and doctor's visits and also held a power of attorney to act for her. Yahner agreed, at her request, to go with her to all three of the banks the following morning to open new accounts. On the morning of July 9, 1990, Ring and Yahner visited each of the banks, closed each old account and opened new ones. While at the AmeriTrust Bank on Detroit Avenue in Lakewood, Ring advised the bank officer, Mildred Babb, that she desired Leo Yahner to be named on the new account. Yahner questioned Ring about her intention to add his name and she reaffirmed her decision. The account, which contained $65,556.39, was then opened in both names, and bore the notation: "Either with rights/Balance payable to survivor." Both parties signed bank signature card, which also bore that notation. Thereafter, Ring died testate and on May 27, 1992, the account was closed and transferred into the name of Leo Yahner as sole owner. On October 6, 1992, Joseph Baker, Executor of the Estate of Elizabeth Ring, filed an action for declaratory judgment naming all the beneficiaries of her estate which - 4 - included some of her personal friends and the Red Cross, Catholic Charities, The Holy Family Cancer Home and the Cleveland Society for the Blind. As Executor, Baker sought the court's declaration that the account was not a survivorship account and that the funds transferred to Yahner by operation of law be returned as assets of the estate for distribution to increase the charitable bequests, since the estate had sufficient assets to satisfy all of the personal bequests contained in Mrs. Ring's will. On September 29, 1993, probate court referee Brown determined after hearing that the disputed bank account was, in fact, a joint and survivorship account, not an asset of the estate, and further determined that Executor Joseph F. Baker should be removed as Executor because he had violated his fiduciary duties under R.C. 2109.44. Thereafter, the Executor filed objections to the referee's report which were heard by the trial judge. On February 18, 1994, the trial judge adopted the referee's report, found the subject bank account to be a valid joint and survivorship account, ordered the removal of Executor Joseph F. Baker, and named Gerald Porter as successor. Gerald Porter then appealed to our court the trial judge's finding that the AmeriTrust account is a valid joint and survivorship account (Case No. 67041); and Joseph Baker appealed his removal as Executor (Case. No. 67026). - 5 - On April 22, 1994, Porter resigned as Executor, and thereafter, Baker was reappointed as Executor of Ring's estate. Both appeals have been consolidated for our review. Case No. 67026 Plaintiff Joseph Baker appealed from the trial judge's decision to remove him as Executor of the Estate of Elizabeth Ring. Since he has been reappointed as Executor, we find, and counsel agreed during oral argument, this case is moot. Accordingly, Case No. 67026 is dismissed. Case No. 67041 I. and II. Plaintiff's first and second assignments of error share a common basis in law and fact and therefore will be considered together. Plaintiff's first assignment of error states: THE TRIAL COURT ERRED, TO THE PREJUDICE OF THE ESTATE- APPELLANT, IN UPHOLDING THE VALIDITY OF A JOINT AND SURVIVORSHIP BANK ACCOUNT. Plaintiff's second assignment of error states: THE TRAIL COURT ERRED, TO THE PREJUDICE OF THE ESTATE- APPELLANT, IN ITS FINDING THAT THE APPELLEE-FIDUCIARY REBUTTED THE PRESUMPTION OF UNDUE INFLUENCE IN THE - 6 - CREATION OF THE JOINT AND SURVIVORSHIP BANK ACCOUNT ON WHICH HE WAS THE SURVIVOR. Plaintiff urges that the statements made by Elizabeth Ring on July 9, 1990, to the bank teller at AmeriTrust did not create a joint and survivorship account. Rather, plaintiff contends, Mr. Yahner was named, by Mrs. Ring, on the account for the purpose of helping her deposit and withdraw funds only during her lifetime. Plaintiff further argues that it was not the decedent's intention to give Mr. Yahner a present interest in the account at the time it was opened. If plaintiff's position is sustained, the money which has been transferred to Mr. Yahner would become an asset of the estate. Defendant Yahner, on the other hand, believes that the trial court properly determined the account to be a joint account with rights of survivorship, and that the money rightfully belongs to him. The issue for our review, then, is whether the trial court properly determined the AmeriTrust bank account to be a valid joint and survivorship account. We begin our analysis with the latest Ohio Supreme Court case on this issue. The court in Wright v. Bloom (1994), 69 Ohio St.3d 596, held in paragraph two of the syllabus as follows: "2. The opening of a joint and survivorship account in the absence of fraud, duress, undue influence or lack of capacity on the part of the decedent is conclusive evidence of his or her intention to transfer to the surviving party or parties a survivorship interest in the balance remaining in the account at his or her death." (Emphasis added) - 7 - Here, the account itself was established in the names of Elizabeth Ring and Leo Yahner. The account, under the heading "paying instructions," states: "Either with rights/Balance payable to survivor", and was signed by Elizabeth Ring and Leo Yahner. According to Wright v. Bloom, supra, this is conclusive evidence of Ring's intent to transfer the balance of the account to Yahner upon her death, unless evidence of undue influence exists on the part of Leo Yahner in this case. Plaintiff argues that Leo Yahner unduly influenced Ring in creating a joint and survivorship account when her intention was simply to replace a lost passbook. Defendant Yahner counters that there is no evidence of undue influence, and thus the rule of Wright v. Bloom, supra, should be applied. We then, must consider whether Mr. Yahner unduly influenced Elizabeth Ring in the creation of the joint and survivorship account. The record reveals that Yahner held the decedent's power of attorney, which created a fiduciary relationship between Yahner and the decedent. The existence of a fiduciary relationship between the creator of a joint and survivorship account and a beneficiary creates a presumption of undue influence which shifts the burden to the beneficiary to present evidence that his conduct was free of undue influence or fraud. Corrigan v. Coughlin, (1983), 11 Ohio App.3d 176. The issue then, is whether - 8 - Yahner successfully rebutted the presumption of undue influence on his part. There is no evidence in the record that Yahner ever exercised the power of attorney given to him by Elizabeth Ring. Although Yahner drove the decedent to banks, the decedent personally transacted her own business, as corroborated by testimony of the AmeriTrust bank teller. On the evening of July 8, 1990, when Ring discovered her bank books missing, she initiated the call to Mr. Yahner for help; he did not initiate contact with her. On July 9, 1990, while at the AmeriTrust Bank, the decedent closed her existing account and directed the bank teller, Mildred Babb, to open a new account with Leo Yahner's name included. There is no evidence that Yahner directed the reopening of the account. In fact, Yahner testified that he asked the decedent if she was sure she wanted his name on the account and she reaffirmed her decision to add his name. The account was then created with rights of survivorship, and Ring signed the bank signature card voluntarily in the presence of the bank teller. These events overcome the presumption of undue influence on the part of Leo Yahner. As such, we conclude that there was no undue influence and follow Wright v. Bloom, supra. The first and second assignments of error are overruled. III. - 9 - Plaintiff's third assignment of error states: THE TRIAL COURT ABUSED ITS DISCRETION IN EXCLUDING EVIDENCE PRESENTED AT TRIAL AND BEFORE TRIAL IN AN IN CAMERA INSPECTION. Plaintiff claims that evidence pertaining to the decedent's dementia and that records of loans received by Leo Yahner from Society Bank should have been admitted into evidence. Defendant urges that plaintiff's failure to comply with Civ.R. 53 precludes appellate review of these issues. The docket of the trial court reflects that plaintiff filed objections to the referee's report on December 20, 1993, but failed to supply a transcript of proceedings before the referee until April 19, 1994. The trial court heard the matter on February 16, 1994 and overruled the objections on February 18, 1994, clearly without the benefit of that transcript. As a reviewing court, we are precluded from considering material on appeal which was not presented to the trial court and we cannot enter a decision based upon consideration of material added at the appellate level. See State v. Ishmail (1978), 54 Ohio St.2d 402. Civ.R. 53(E)(6) provides authority for the trial court to adopt appropriate findings of the referee in the absence of a transcript from the referee's hearing. In part, it states: "The court may adopt any finding of fact in the referee's report without further consideration unless the party who objects to that finding supports that objection with a copy of all relevant portions of the transcript from the referee's hearing ***." - 10 - This is the holding in Dillingham v. Turner (January 26, 1995), Cuyahoga App. No. 66893, unreported. Hence, we conclude that inasmuch as the plaintiff has provided a transcript of a portion of the referee's proceeding to this court regarding dementia, but failed to timely transmit it to the trial court, we cannot consider it on appeal. The other issue for our review concerns evidence of bank loans made to Yahner which the trial court excluded during an in camera hearing. The plaintiff has failed to provide this court with a transcript of that in camera hearing. Since plaintiff failed to provide this transcript, that matter is likewise not properly presented to us for review. Accordingly, we cannot consider these issues and we dismiss this assigned error. Judgment affirmed. - 11 - It is ordered that appellee(s) recover of appellant(s) costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Probate 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. JAMES D. SWEENEY, P.J., and BLACKMON, J., CONCUR JUDGE TERRENCE O'DONNELL N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journaliza- tion, at which time it will become the judgment and order of the court and time period for review will begin to run. .