COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68261 IN RE: WAYNE T. CONNELL, : INCOMPETENT : : : [Appeal by Carolyn Bates, Former : JOURNAL ENTRY Guardian : AND Appellant] : OPINION : : DATE OF ANNOUNCEMENT OF DECISION AUGUST 24, 1995 CHARACTER OF PROCEEDING Appeal from Court of Common Pleas, Probate Court Division Case No. 1078825 JUDGMENT Affirmed in part; reversed in part and remanded. DATE OF JOURNALIZATION APPEARANCES: For Appellant Carolyn For Appellee Hugh A. Carlin, Bates, Former Guardian: Successor Guardian: PATRICK M. FLANAGAN, ESQ. HUGH A. CARLIN, ESQ. Savoy, Bilancini, Flanagan 14600 Detroit Avenue & Kenneally Suite 1150 595 West Broad Street Lakewood, Ohio 44107 Elyria, Ohio 44035 - 3 - JAMES M. PORTER, J., Appellant Carolyn Bates, former guardian of Wayne T. Connell, Incompetent, appeals from the orders of the Probate Court removing her as guardian, denying requests for expenditures and refusing to stay her removal pending this appeal. Appellant claims the Probate Court failed to hold a hearing on her removal as required by law and abused its discretion in the other particulars. For the reasons hereinafter stated, we affirm in part and reverse in part. Since there is no transcript or 9(C) statement of the removal proceedings, we have had to review the entire Probate Court file to piece together the following facts, which appear undisputed. The guardianship of Wayne T. Connell (now age 47) began in 1984 under the jurisdiction of the Highland County Probate Court where the ward lived on a farm with his aging mother until her death in 1990. There were no sisters or brothers; his father died in 1972. Although Connell had two surviving aunts, they were elderly and in failing health and could be of no assistance to him. The original guardian appointed by the Highland County Probate Court was Carroll McKinney, Esq., who had represented Connell in the sale of his farm. Under the mother's will her entire estate was to be placed in trust for her only son. The will prepared by McKinney named him as Trustee and Executor of the mother's estate. As the mother's death drew near, Connell prevailed on a family friend, J. Harvey Crow, to allow Connell to stay with him in Brecksville. The mother died on July 4, 1990, and six days later, - 4 - her will was probated and McKinney was appointed Executor and attorney for the estate in Highland County. Since July 4, 1990, Connell has resided at Crow's home in Brecksville. Crow has apparently provided all housing, clothing, food, transportation and medical care and necessities for Connell without complete reimbursement during the past four year period. McKinney, Connell's guardian, made no provision for his upkeep during this period and declined Crow's request for rent and costs of Connell's care. Carolyn Bates, a tenant of Crow who also lived at the Crow residence where Connell resided, applied to be appointed guardian. Crow, who is 91 years of age, was not a feasible choice as guardian. An application to transfer guardianship from Highland County to Cuyahoga County was granted on June 22, 1993. Guardian McKinney agreed to the transfer, as Connell had been residing in Cuyahoga County. On July 23, 1993, pursuant to a motion filed by Carolyn Bates' attorney, McKinney was removed as guardian as he was delinquent in filing his accounts. After an investigation and a report by Cuyahoga County Social Services and a hearing on the subject, Bates was approved and appointed guardian on August 13, 1993 and posted a $150,000 bond for the faithful performance of her duties. Bates contends that she made repeated and partially successful efforts to recover assets which had been neglected by McKinney. McKinney is said to have obstructed or failed to cooperate with - 5 - these efforts. Among these successful efforts included recovery of an annuity which assured Connell $1,225.19 per month for life plus a recovery of past due payments of $30,268. Other personal property of Connell from the farm was recovered and stored. Crow apparently paid the expense of recovery and storing this personal property and transferring the guardianship to Cuyahoga County. To this day, Connell continues to reside with Crow at the Brecksville home. The issue of removal arose out of Guardian Bates requests for expenditure of funds to reimburse Crow for his support of Connell and to satisfy other debts. On July 29, 1994, Guardian Bates filed nine (now reduced) to six applications for authorization to expend funds as follows: (1) to Crow for 42 months (from July 4, 1990 through December 1993) of care, custody and living expenses supplied Connell at the rate of $1,131.50 per month ($36.50 per day) less $20,300 paid during the McKinney guardianship, or a net total of $27,192.92; (2) to Crow for the continuing upkeep, rent, support of Connell at the monthly rate of $1,131.50 since January 1, 1994 and continuing; (3) to Crow for the expenses to transfer the guardianship to Cuyahoga County and recover and store the personal property in the aggregate sum of $2,131.62; (4) the guardian's application of attorney fees for the period April 7, 1993 - November 10, 1993 itemized in the aggregate sum of $2,823.50; (5) reimbursement to Crow for expenses arising out of operation of Connell's farm dating from a "contract" - 6 - executed in 1981 in the sum of $33,040.95; and (6) an additional claim by Crow referring to the same contract in the sum of $7,263.70. Thus, the total reimbursement claimed for items one through four was $38,937.04, less any other credits Crow received. No one has apparently objected to the reasonableness of these charges. The contract items five and six totalled $40,304.65. A hearing on these applications was held before the Probate Referee on September 23, 1994, at which time Guardian Bates testified to her knowledge of the care and benefits supplied by Crow over the past four year period. Crow was available, but excluded from the hearing. No record or transcript of this hearing was made or reconstructed under App. R. 9(C) so we must presume regularity and not speculate about the evidence offered. On November 1, 1994, the Report of Referee was filed. He recommended that the nine [six] applications for authority to expend funds be denied; that the motion to pay attorney fees, as modified in the amount of $1,025, be granted to cover the services after appointment of Guardian Bates and further recommended that the guardian be removed "for the best interests of the ward" and an independent guardian be appointed. After noting the duplicative or overlapping nature of the applications to authorize expenditures, the Referee noted the conflicting interests of the parties: At the hearing on the instant applications, the guardian testified that she is a tenant of - 7 - J. Harvey Crow along with her ward, Wayne Connell. She also testified that she types letters for J. Harvey Crow and as a result she was aware of Mr. Crow's claims prior to her appointment as guardian for Wayne Connell. A review of the court file reflects that the claimant, J. Harvey Crow sought payment of many of these claims from the former guardian, Carroll McKinney. Apparently, those claims were never honored by the former guardian. Since the appointment of Carolyn A. Bates, Mr. Crow has resubmitted his claims to the guardian. This guardian apparently has review [sic] the claims in a different light and seeks authority from the court the [sic] pay purported claims. The claims total $98,503.47. According to the court record, Patrick Flanagan represents the guardian Carolyn Bates, however, Mr. Flanagan acknowledges that he has represented the claimant, J. Harvey Crow, in the past. A review of Mr. Flanagan's attorney fee statement clearly reflects that much of his correspondence and conferences were directed to J. Harvey Crow. The referee also noted that guardian's duty to bring suit for the ward when it would be in his best interests (R.C. 2111.14) and to deposit a ward's will under Loc. Prob. R. 34.3. The referee further stated: In the instant case, the guardian has failed to comply with Rule 34.2 [sic]. She is in possession of the ward's will and has failed to deposit the will with the court. The guardian has clearly failed to exercise her duties established by R.C. 2111.14. She was aware of Mr. Crow's claims prior to her appointment. She chose Mr. Flanagan to represent her in the guardianship knowing that Mr. Flanagan represents Mr. Crow. No evidence was presented that the guardian sought independent legal advice regarding these claims. The guardian clearly failed to protect her ward's estate when confronted with these claims. - 8 - In addition, the guardian's relationship with the claimant namely, tenant and landlord clearly impinges on her ability to independently review the purported claims presented by J. Harry Crow. The Guardian Bates filed objections to the Referee's Report which was set for hearing on November 28, 1994. No transcript of this hearing was taken. On November 28, the Probate Court denied the applications for expenditures, ordered the removal of the guardian and authorized attorney fees in the amount of $1,924.25 to Attorney Flanagan. A successor guardian, Hugh Carlin, was appointed on December 6, 1994 and appears herein as appellee. A notice of appeal was filed on December 13, 1994. The Probate Court denied a motion to stay on December 15 and this Court did the same on January 11, 1995. We will address appellant's assignments of error in the order asserted. I. THE PROBATE COURT ERRED IN REMOVING THE GUARDIAN SUA SPONTE WITHOUT NOTICE OR HEARING REQUIRED BY R.C. 2109.24 AND THE OHIO AND UNITED STATES CONSTITUTIONS. R.C. 2109.24 provides in pertinent part that "the court may remove any such fiduciary after giving the fiduciary not less than ten (10) days notice *** because the interest of the trust demands it, for any other cause authorized by law." Appellant contends she was removed without notice, without a hearing, and without an opportunity to defend her guardianship. We disagree. Ordinarily, ten day notice and a hearing must be had before the fiduciary is removed. In re Estate of Russolillo (1990), 69 - 9 - Ohio App.3d 448, 451; In re Guardianship of Escola (1987), 41 Ohio App.3d 42, 44; In re Estate of Paull (1950), 90 Ohio App. 403, paragraph one of syllabus. Appellant claims she did not have the benefit of the statute and was denied constitutional due process. Under the circumstance, the November 1, 1994 Referee's Report plainly recommended removal for various conflicts and defaults in the guardian's duties apparently established at the hearing. The appellant took exception to the referee's findings and filed objections to the report on November 15, 1994. The court set the matter for hearing on November 28, 1994 and the parties appeared and argued same. We find that these events satisfied the requirement of ten days notice and a due process hearing on the removal. This assignment of error is overruled. II. THE PROBATE COURT ERRED AND ABUSED ITS DISCRETION BY ORDERING THE REMOVAL OF THE GUARDIAN. R.C. 2109.24 authorizes the trial court to remove a fiduciary for the following reasons: habitual drunkenness, neglect of duty, incompetency, or fraudulent conduct, because the interest of the trust demands it, or for any other cause authorized by law. The removal of a fiduciary pursuant to R.C. 2109.24 rests within the sound discretion of the trial court and a reviewing court will not reverse that decision absent a clear showing of abuse of that discretion. In re Estate of Bednarczuk (1992), 80 Ohio App.3d 548, 551; In re Estate of Russolillo (1990), 69 Ohio App.3d 448, 450; In - 10 - re Estate of Winograd (1989), 65 Ohio App.3d 76, 81; In re Estate Jarvis (1980), 67 Ohio App.2d 94, 97. Based on the record before us, there existed the potential for conflicts of interest between Bates and Crow. Bates is a tenant of Crow's and also does typing for him. Although Bates contends the court was aware of these conflicts when she was appointed guardian, the record is silent regarding these mattters and does not disclose that the court was aware of them. Bates also retained Crow's attorney to represent her in determining the expenses to be paid to Crow for the care of Connell. Bates also possessed a copy of Connell's will, but failed to file it with the Probate Court as required by Loc. Prob. R. 34.3, which states that guardians of adult wards are to deposit the will of the ward immediately following their appointment as guardian. Although it is doubtful the failure to file a will of an incompetent ward offends this provision, the conflicts of interest between the parties involved does. As the court in In re Guardianship of Escola (1987), 41 Ohio App.3d 42, 44 held: In a removal, it is discretionary with the probate court as to whether the guardian should be removed, and such removal may be based upon any just cause when the interest of the trust demands it. In re Estate of Jarvis (1980), 67 Ohio App.2d 94, 21 O.O.3d 411, 425 N.E.2d 939. The probate court need not find that the guardian's action amounted to violations of the law or that his actions caused injury to the ward or the ward's estate. To warrant removal, the probate court need only find that the best interests of the ward will be served by the guardian's removal. Further, the evidence need not be clear and convincing to justify an order - 11 - of removal. In re Estate of Bost (1983), 10 Ohio App.3d 147, 10 OBR 199, 460 N.E.2d 1156. We cannot say based on the evidence before us that the court abused its discretion in ordering the removal of Bates as guardian. The various conflicts of interests or potential for same between and among Bates, her attorney and the claimant presented the Probate Court with ample reasons to remove Bates as guardian. In the absence of a transcript of the hearing before the referee, we cannot find an abuse of discretion. Assignment of Error II is overruled. III. THE PROBATE COURT ERRED AND ABUSED ITS DISCRETION BY DENYING THE APPLICATIONS FOR AUTHORITY TO EXPEND FUNDS. We are troubled by the court's denial of the authorization for expenditure of funds to reimburse Mr. Crow for the maintenance of the ward. There appears to be no dispute that Mr. Crow had afforded reasonable and valuable necessaries to the ward since 1990. It also appears that he has been reimbursed at least in part for his contributions from the former guardian McKinney and has credited those items. Although there may have been "numerous" conflicts of interest, we fail to see that this should automatically deprive Mr. Crow of his right to reimbursement for affording the ward a home over the last four years. Apparently, the ward is still residing with Mr. Crow. Under these circumstances we sustain Assignment of Error III, reverse the judgment entries denying the expenditure of funds and direct that a hearing be held de novo on Mr. Crow's right to - 12 - reimbursement for supplying the necessaries to the ward and the other items (contract claims and preservation of property). The newly appointed guardian can oppose those expenditures at the hearing if he chooses to do so. We find no error in the Probate Court's award of attorney fees. "Whether or not such expenses [attorney fees] are necessary or beneficial to the ward's interests is squarely within the exercise of the court's discretion." In re Escola, 41 Ohio App.3d at 47. According to the "statement of legal services" submitted by attorney Flanagan, some of the services performed were on behalf of Mr. Crow and not Connell. We leave it to the Probate Court's discretion to determine which legal services were necessary to the ward's interest. IV. THE PROBATE COURT ERRED BY DENYING THE GUARDIAN/APPELLANT'S MOTION TO STAY. Since we have affirmed the removal of the guardian under Assignment of Error I and II, we find this assignment of error moot and will not address same under App. R. 12(A)(1)(c). Judgment affirmed in part; reversed in part and remanded for further proceedings consistent with this opinion. - 13 - It is ordered that appellee and appellant shall pay their respective 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 Court of Common Pleas, Probate Court 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. BLACKMON, P.J., and DAVID T. MATIA, J., CONCUR. JAMES M. PORTER JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, at which .