COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70666 IN RE: : : GUARDIANSHIP OF BEULAH STOKES : JOURNAL ENTRY : AND : OPINION DATE OF ANNOUNCEMENT OF DECISION: JANUARY 30, 1997 CHARACTER OF PROCEEDING: Civil appeal from Court of Common Pleas Probate Court Division Case No. 1119452 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: For Defendant-Appellee: MICHAEL J. O'SHEA, ESQ. HUGH A. CARLIN, ESQ. 1600 Illuminating Building 14600 Detroit Avenue, #1150 55 Public Square Lakewood, Ohio 44107 Cleveland, Ohio 44113 KATHLEEN S. GRADY, ESQ. 3500 Terminal Tower Cleveland, Ohio 44113 WILLIAM J. DAY, ESQ. 8748 Brecksville Road, #216 Brecksville, Ohio 44141 ALAN G. GELBMAN, ESQ. 757 INA Building 14701 Detroit Avenue Lakewood, Ohio 44107 EDWARD CLEARY, ESQ. 10800 Center Ridge Rd., #217 Rocky River, Ohio 44116 - 2 - DYKE, J.: Kenneth Hall appeals from the judgment of the probate court which appointed an estate only guardian to manage the estate of his mother, Beulah Christine Stokes. For the reasons set forth below, we affirm. The record demonstrates that Mrs. Stokes' son Robert M. Hall died intestate on June 19, 1994, leaving an estate worth approxi- mately $100,000, including $92,000 from a duplex deeded in his name, and fifty shares of closely held stock from a used car company. The record further discloses that Mrs. Stokes disclaimed her interest in the estate on August 14, 1994. Thereafter, in February 1995, Mrs. Stokes filed a notice of "waiver" of the disclaimer and asserted that the original waiver was not properly notarized and was signed while she was under the mistaken belief that her son Norman Hall was likewise disclaiming his interest in the estate. On August 16, 1995, Hugh A. Carlin filed an application for the appointment of a non-limited guardianship for Mrs. Stokes and alleged that she is incompetent by reason of mental disability pursuant to R.C. 2111.01(D). An investigation was undertaken pursuant to R.C. 2111.041. The investigator's report revealed that Mrs. Stokes was opposed to the application. In addition, the investigator observed Mrs. Stokes to be "alert and partially oriented *** mildly confused/forgetful; was able to generally discuss recent events *** - 3 - requires assistance/supervision *** including household/financial." The investigator did not render an opinion as to whether the guardianship should be imposed, however, but instead recommended that an independent evaluation be conducted. The investigator further noted that Mrs. Stokes had been referred to Adult Protective Services in Belmont County in February 1990 and June 1994. The first referral alleged possible exploitation by a caregiver and ended after APS assisted her with terminating the caregiver's services. The second referral occurred after Mrs. Stokes was found lying on the floor of her home and the home was "filthy." On October 2, 1995, Mrs. Stokes' son, Kenneth Hall, appellant herein, filed a memorandum opposing the application for a guard- ianship, and maintained that the application was initiated by his brother Norman Hall "in order to protect Norman Hall's monetary interests in Mrs. Stokes' future estate and in the disputed estate of Robert Hall." The following day, Carlin, with the agreement of all counsel of record, filed a motion for an independent medical evaluation of Mrs. Stokes pursuant to R.C. 2111.031. The court granted the motion and appointed Magdi Rizk, M.D., to conduct a complete mental examination "and submit a mental report to the Court indicating an opinion as to the necessity of a guardianship." Dr. Rizk prepared the report and submitted it to the court on October 27, 1995. In relevant part, this report indicated: - 4 - Sources of Information: 1. Psychiatric examination on 10/27/95. 2. City Hospital of Bellaire Ohio medical records for 1994-1995. Relevant History: *** Ms. Stokes suffered from a variety of medical problems for the last two years. *** Patient received surgical treatment for her ulcers and as a result of the anesthetic and analgesics used she developed a temporary substance induced psychosis, a diagnosis reached by Carmel Shaw-Nieves, M.D. psychi- atrist consultant at City Hospital of Bellaire, Ohio. *** She stated that she collects about $1100.00 monthly from Social Security and her Pension. Ms. Stokes was not clear why anybody would want to place her under guardian- ship. She related that she was content staying with her son Kenneth and her grandchildren. *** *** Speech was coherent, relevant and within average for rate and amount. Affect was mildly apprehensive which is expected in such a situation. She did not endorse any delusional thinking, hallucinations, phobias, obsessions or compulsions. Attention span and concentration were fair. She was oriented to time, place and person. She knew the days date, she was aware that she lived in Garfield Heights and that the office of this examiner was in Cleveland Heights. She was able to report 5 digits forward and 3 digits backwards. She remembered two out of three objects after five minutes. Memory for recent and remote events was poor to fair. She could not remember exact dates of her - 5 - past hospitalizations but she was able to remember her medical problems at the time; and which hospital she was treated at. She was also able to remember her monthly income and her bank's name. Mathematical abilities were poor as she scored poorly on simple mathematical prob- lems. Fund of general knowledge was fair. Proverb interpretation was good but she scored poorly on similarities. Judgment was fair, insight was good. Impression: Dementia not otherwise specified mild in degree. *** It is my opinion that Ms. Stokes is Not in need of a guardian of person as her intellectual abilities are not poor. However, Ms. Stokes is in need of a guardian of estate or a payee to manage her assets. Thereafter, the matter proceeded to a hearing before a magistrate on November 22, 1995. At this time, Carlin modified the application for appointment of a guardian to limit it to the estate of Mrs. Stokes, and testimony was elicited from Dr. Rizk and Mrs. Stokes. The parties stipulated to the qualifications of Dr. Rizk, a board certified psychiatrist. Dr. Rizk then testified that he reviewed medical records from Mrs. Stokes' prior hospitalization, and also personally examined her. Rizk testified that he performed various cognitive tests upon Mrs. Stokes and determined that she had some difficulty with con- centration, recently developed memory impairment, some impairment of mathematical abilities, and impairment of abstract reasoning ability. He stated to a reasonable degree of medical certainty that she has dementia which is clear cut, but he did not investi- gate its origins, in contrast to what a treating physician may have - 6 - done. He further stated that this condition makes Mrs. Stokes more susceptible to suggestions. From this, Rizk stated to a reasonable degree of medical certainty that Mrs. Stokes is in need of a guardian for her estate, but is capable of overseeing simpler matters such as the management of her monthly income. On cross-examination, Dr. Rizk admitted that if the dementia were caused by a physical problem which had subsequently been treated, her orientation may improve. Nonetheless, her competency would probably remain the same since nervous tissue does not regenerate. Mrs. Stokes testimony revealed that she knew her family members, her address, and the purpose of the proceedings. She testified that she is happy living with Kenneth Hall and his family, and she believes that she is capable of handling her own affairs and asking for help if necessary. Mrs. Stokes did not know what a "duplex" is, however, did not know what "closely held stock" is, and could not clearly recall her former attorneys or the services they performed for her. In addition, she did not know what is meant by a "waiver," did not understand documents identi- fied as her prior affidavits, and did know how she obtained the disclaimer which she signed. She stated that she "just glanced at" some of the documents before signing them. Kenneth Hall put forth no witnesses, but argued at the close of the matter that Dr. Rizk's report should not be admitted into evidence. The magistrate permitted introduction of the report. - 7 - Thereafter, she issued a report which indicated that there was clear and convincing evidence demonstrating the necessity of the appointment of a guardian for Mrs. Stokes' estate she stated: The transcript will show that during both direct and cross-examination it became apparent that the Respondent suffered from memory deficits. Her abilities to recall recent and remote events appeared compromised. For example, she could not recall some basic asset informa- tion such as her monthly income and distributions from her checking account. She also could not recall having recently executed a new Will. She was confused regarding documents she allegedly signed. (Exhibit Nos. 4, 7, 8 and 9.) She could not state the nature of the documents and had no specific recollection of having signed the document. The standard to determine whether guardianship is necessary is the presentation of clear and convincing evidence. Dr. Rizk is the only expert to submit a medical opinion. He provides an uncontroverted diagnosis of Dementia and concludes that the Respondent is compromised in her ability to manage complex estate issues. The Respondent's own testimony supports Dr. Rizk's conclusion. The Respondent owns real estate in Southern Ohio and is a beneficiary of the estate of her deceased son, Robert Hall. The 'Inventory and Appraisal' filed as part of the administration of the estate lists, among other assets, real estate valued at $92,000.00. Thus, the Respondent has assets which support the appointment of a guardian. It is, therefore, the Recommendation of the magistrate that the Application for Appointment of Guardian of Estate Only filed by Hugh A. Carlin be GRANTED upon giving bond in the amount of $20,000.00. Kenneth Hall and Mrs. Stokes both filed objections to the report of the magistrate. The trial court overruled the objec- tions, adopted the findings and conclusions of the magistrate, and - 8 - appointed a guardian for Mrs. Stokes' estate. Kenneth Hall appeals herein and assigns three errors for our review. Hall's first assignment of error states: THE ENTIRE MAGISTRATE'S REPORT MUST FAIL AS A MATTER OF LAW DUE TO THE MAGISTRATE'S REPORT'S SPECIFIC RELIANCE UPON INADMISSIBLE HEARSAY. In this assignment of error, Hall complains that the court erred in admitting into evidence the court-ordered report of Dr. Rizk. Evid. R. 802 provides: Hearsay is not admissible except as otherwise provided by *** statute enacted by the General Assembly not in conflict with a rule of the Supreme Court of Ohio, by these rules, or by other rules proscribed by the Supreme Court of Ohio. In Roach v. Roach (1992), 79 Ohio App.3d 194, 199-200, the court noted that R.C. 2317.39 controls the general admissibility of court-ordered investigations, and expressly authorizes a trial court to admit any court-ordered investigation report into evidence as testimony. See also Sayre v. Hoelzle-Sayre (1994), 100 Ohio App.3d 203, 209. In relevant part, R.C. 2317.39 provides: Whenever an investigation into the facts of any case, civil or criminal, pending at the time of such investigation in any court, is made *** by any court *** or any other persons, and a report of such investigation is prepared for submission to the court, the contents of such report shall not be considered by any judge of the court *** before the trial of the case or at any stage of the proceedings prior to final disposition thereof, unless the full contents of such report have been made readily available and accessible to all parties to the case or their counsel. The parties or their counsel shall be notified in writing of the fact that an investigation has been made, that a report has been - 9 - submitted, and that the contents of the report are available for examination. Such notice shall be given at least five days prior to the time the contents of any report are to be considered by any judge of the court wherein the case is pending ***. This section does not apply only to the utilization of the contents of such reports as testimony, but shall prevent any judge from familiarizing himself with such contents in any manner unless this section has been fully complied with. In this instance, the attorney for the applicant established that the report was made available and he accordingly reviewed it within the court file. (Tr. 29-30). The attorney for appellant insisted that the report had to be served upon him as a discovery document and that the report itself was inadmissible hearsay. From the foregoing, we cannot conclude that the trial court erred in admitting the report into evidence pursuant to R.C. 2317.39, and in refusing to credit appellant's contention regarding the necessity of service of the document. In any event, the magistrate found, and the parties do not dispute, that the contents of the report merely reiterate the testimony presented in court by Dr. Rizk. (Tr. 213). This portion of the assigned error is overruled. With regard to Hall's remaining contention that the court should not have considered Dr. Rizk's report since it contains hearsay statements concerning Mrs. Stokes' prior medical care, we note that Evid. R. 703 does indeed require that opinion testimony by an expert witness must be based upon facts within that witness's own personal knowledge or upon facts shown by the evidence. See, - 10 - e.g., State v. Robles (1989), 65 Ohio App.3d 104, 107. This rule does not preclude introduction of Rizk's report in this instance, however, as he emphatically stated that the statements concerning Mrs. Stokes' prior medical care did not form any basis of his opinion. (Tr. 33-34). This portion of the assigned error is overruled. The first assignment of error is overruled. Hall's second assignment of error states: EVEN WITH THE INTRODUCTION OF THE HEARSAY EVIDENCE,THE APPOINTMENT OF A GUARDIAN OVER THE ESTATE OF MRS.STOKES IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. Herein, Hall challenges the weight of the evidence supporting the lower court's determination that Mrs. Stokes was incapable of taking proper care of her property and that a guardian was required to manage her estate. In determining whether a judgment is against the manifest weight of the evidence, a court of appeals must be guided by the presumption that the findings of the trier-of-fact were indeed correct. Seasons Coal Co. v. Cleveland (1984), 10 Ohio App.3d 77, 79-80. The court explained: The underlying rationale of giving deference to the findings of the trial court rests with the knowledge that the trial judge is best able to view the witnesses and observe their demeanor, gestures and voice inflections, and use these observations in weighing the credibility of the proffered testimony. - 11 - Thus, 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. Id., quoting C.E. Morris Co. v. Foley Construction Co. (1987), 54 Ohio St.2d 279, 261. We further note that R.C. 2111.02(A) provides that "when found necessary, the probate court on its own motion or on appli- cation by any interested party shall appoint, subject to division (C) of this section *** a guardian of the person, the estate, or both, of a minor or incompetent ***." R.C. 2111.02(C) provides that the applicant bears the burden of proving incompetency by clear and convincing evidence, R.C. 2111.02(C)(3), In re guardian- ship of Rudy (1992), 65 Ohio St.3d 394, 395, 604 N.E.2d 736, and that the court may deny a guardianship based upon a finding that a less restrictive alternative to guardianship exists, R.C. 2111.02(C)(6). R.C. 2111.01(D) defines an "incompetent" as: *** any person who is so mentally impaired as a result of mental or physical illness or disability, or mental retardation, or as a result of chronic substance abuse, that he is incapable of taking proper care of himself or his property or fails to provide for his family or other persons for whom he is charged by law to provide, or any person confined to a penal institution within this state. In this instance, the trial court properly determined that there was clear and convincing evidence that Mrs. Stokes could not take proper care of her property. The uncontroverted evidence demonstrates that she suffers from dementia which impairs her - 12 - ability to handle the complex issues surrounding her estate, such as the disposition of real estate. Significantly, Mrs. Stokes' own testimony revealed that she was confused about documents which she had already signed as she did not understand the nature of the documents and could not remember signing them. We therefore are unable to credit this assigned error. The second assignment of error is overruled. Hall's third assignment of error states: EVEN IF THE APPOINTMENT OF A GUARDIAN OVER THE ESTATE OF MRS. STOKES IS NOT AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE, GIVEN THE MACHIAVELLIAN BASIS FOR THE APPLICA- TION OF SAID GUARDIANSHIP, THE TRIAL COURT ABUSED ITS DISCRETION BY MAKING SUCH APPOINTMENT. Within this assignment of error, Kenneth Hall maintains that the guardianship application and the ensuing proceedings are suspect because they were motivated by Norman Hall's desire to obtain a maximum portion of Robert Hall's estate. As the focus of the instant matter was whether Mrs. Stokes' mental condition was such to require imposition of an estate only guardian as a matter of law, and no evidence was presented to substantiate the allegations leveled at Norman Hall or to elucidate Mrs. Stokes' intentions with regard to that estate, this assignment of error must be rejected as a matter of law. See Hungler v. Cincinnati (1986), 25 Ohio St.3d 338, 342. Judgment affirmed. - 13 - It is ordered that appellee recover of appellant its 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 Common Pleas Court, 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. PATTON, J,. AND SPELLACY, J., CONCUR ANN DYKE PRESIDING JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .