COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72477 HERBERT D. SCHUERGER : : : JOURNAL ENTRY PLAINTIFF-APPELLANT : : AND v. : : OPINION MARILYN WEHNER, ET AL. : : : DEFENDANTS-APPELLEES : DATE OF ANNOUNCEMENT OF DECISION: JUNE 25, 1998 CHARACTER OF PROCEEDING: Civil appeal from Probate Court, No. 72477. JUDGMENT: REVERSED AND REMANDED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: Lawrence Rafalski, Esq. P.O. Box 93701 Cleveland, OH 44101-5701 For Defendants-Appellees: Timothy G. Crowley, Esq. 150 West Wilson Bridge, No. 101 Worthington, OH 43085 -2- TIMOTHY E. McMONAGLE, J.: Plaintiff-appellant Herbert D. Schuerger ( appellant ) appeals from the judgments of the Cuyahoga County Court of Common Pleas, Probate Division by which his complaint for declaratory judgment was dismissed and summary judgment was rendered in favor of defendants-appellees Marilyn Wehner, individually and as executrix of the estates of Herbert G. Schuerger and Marguerite M. Schuerger ( appellees ) on certain items in their counterclaim against him. This matter arises from a dispute between a brother and sister regarding the assets to be included in the inventories of the estates of their deceased parents. The facts relevant to this appeal are as follows. Appellant Herbert D. Schuerger and appellee Marilyn Wehner are brother and sister. Their parents, Herbert G. Schuerger and Marguerite M. Schuerger each executed power of attorney on April 16,1994 naming Herbert D. Schuerger as attorney- in-fact to assist in the transaction of their general business. After the deaths of both parents, on May 16, 1995, appellee Wehner was appointed executrix of each of the estates of their parents, Herbert G. Schuerger (case no. 1109404) and Marguerite M. Schuerger (case no. 1112972), who died May 19, 1994 and October 30, 1994 respectively. On August 16, 1995, the executrix filed separate inventory and appraisals for the respective estates of Herbert D. Schuerger and Marguerite M. Schuerger. Appellant and appellee Wehner, in her individual capacity and in her capacity as executrix of each estate, disagreed as to the inclusion or exclusion of certain assets in these estate inventories. Although hearing on the -3- inventories was set for September 13, 1995, appellant failed to file exceptions to these inventories until September 12, 1995, outside the statutorily permitted time as provided by R.C. 2115.16. On January 22, 1996, appellant filed the within complaint for declaratory judgment requesting the Probate Court to render declaration that certain items be excluded from the inventory of each of the estates, and that the date of death valuation of certain of the decedents' accounts be included in the inventory. Named as defendants in the matter were his sister, Marilyn A. Wehner both personally and as executrix for the estates of Herbert Schuerger, his father, and Marguerite Schuerger, his mother. Appellees answered the complaint and filed a counterclaim against appellant claiming concealment (embezzling) of estate assets by appellant pursuant to R.C. 2109.50 and requesting an equitable accounting of assets converted. Appellant answered the counterclaim on March 22, 1996. On November 7, 1996, the court granted appellant leave to file his amended complaint wherein he added a request that the court declare as assets of the estate certain property taken by appellee Marilyn Wehner from his parents during the time period between March and May 1994. On December 6, 1996, appellees answered the amended complaint, requested dismissal of appellant's complaint with prejudice, filed an amended motion for leave to file instanter the amended counterclaim, and filed an amended counterclaim. Moreover, the same day, appellees filed a motion to dismiss and/or for summary judgment on amended complaint and a motion for partial -4- summary judgment upon their amended counterclaim. Hearing on the outstanding motions in the case was set for December 20, 1996. On December 13, 1996, appellant filed a request for jury trial; request for attorney paperwork; a discovery request for evidence held by attorney Crowley; and a request for appointment of counsel. On December 20, 1996 by stipulation, the parties and court agreed that appellant had to January 3, 1997 to respond to appellees' summary judgment and dismissal motions as to both the complaint and the counterclaim. On that day, the court denied appellant's request for legal assistance and considered the remaining outstanding motions heard and submitted. On January 3, 1997, appellant timely filed his responses to both the dismissal and summary judgment motions and requested additional time to obtain a report from a CPA. Appellant's December 5, 1996 motion for continuance was granted and trial on the matter was set for March 11, 1997, but was further continued by the court to May 7, 1997. On March 19, 1997, the magistrate entered a report in which he recommended inter alia that appellees' amended motion for leave to file their amended counterclaim be granted; appellees' motion for partial summary judgment be granted in part and overruled in part; appellant's request for jury trial be granted and appellant's other outstanding motions be overruled. Without objection by any party, on April 9, 1997, the court entered judgment as recommended by the magistrate and granted partial summary judgment in part in favor of appellees on their counterclaim against appellant, finding he concealed assets of the -5- estate for claims amounting to $44,208.49, pursuant to R.C. 2109.50; but denied the motion in part relative to the other assets claimed finding factual issues remained to be resolved. Appellant's motion for a jury trial was granted and jury trial was set for June 16, 1997. On May 13, 1997, in a series of judgment entries, the trial court dismissed all claims remaining in both the complaint and the counterclaim. First, the court granted appellees' motion to dismiss and/or for summary judgment upon appellant's amended complaint. Second, by nunc pro tunc entry, the court granted appellees' motion for partial summary judgment upon the counterclaim for transactions totaling $44,208.49, adding 10 percent interest and 10 percent statutory penalties and overruled the remaining portion of the partial summary judgment. Third, the court granted partial summary judgment, as modified, on appellees' renewed summary judgment motion [not in the record] on additional items, $1,453.04 the proceeds of the Metropolitan Life insurance policy on the life of Marguerite Schuerger, and an additional $500 check, totaling $1,953.04 plus interest and penalty. The court granted appellees' Civ. R. 41 (A) motion [not in the record] and dismissed without prejudice appellees' counterclaim against appellant. Finally, the court found appellant's outstanding motion for dismissal and to show cause to go forth filed May 2, 1997 was rendered moot by these various judgments issued in the matter. Appellant, in an attempt to perfect an appeal from the April 9, 1997 judgment entered against him in the amount of $44,208.49 on -6- appellees' counterclaim, filed a notice of appeal to this court on May 9, 1997. Appellant filed a motion to amend his notice of appeal. Appellees filed motion to dismiss the appeal. On September 24, 1997, this court denied as moot appellant's motion to amend his notice of appeal and granted appellees' motion to dismiss the appeal pursuant to Civ.R. 54(B), finding the initial appeal to have been taken from a non-final appealable order. On November 5, 1997 this court granted appellant's motion for reconsideration of the dismissal of his appeal and allowed the appeal as to the dismissal of his declaratory judgment action noting all other items as being non-final as per Civ.R. 54 (B). This court then amended the notice of appeal to include the trial court's May 13, 1997 dismissal of the complaint for declaratory judgment with prejudice. The record reflects that all remaining claims in the counterclaim sub judice were dismissed by appellees without prejudice by journal entry on May 13, 1997 and no claims remain to be litigated. All issues in this matter are final, appealable and subject to our review. Appellant advances four assignments of error for our review. THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT BY FAILING TO ISSUE ITS RULING ON A JURY REQUEST IN TIMELY FASHION. WHILE THE JURY REQUEST WAS PENDING THE COURT REFERRED THIS CASE TO A TRIAL MAGISTRATE, AND GRANTED THE JURY REQUEST AFTERWARD. HAD THE REQUEST BEEN GRANTED IN TIMELY FASHION, THE REFERENCE TO A MAGISTRATE WOULD NOT HAVE BEEN MADE, AS PROVIDED BY CIVIL RULE 53. THE TRIAL COURT ABUSED ITS DISCRETION, AND ERRED TO THE PREJUDICE OF APPELLANT, BY A DENIAL OF APPELLANT'S REQUEST TO STAY PROCEEDINGS FOR RECEIPT OF THE REPORT OF AN EXPERT WITNESS, SUCH REPORT EXPECTED TO -7- CONTAIN EVIDENCE WEIGHING AGAINST THE GRANT OF SUMMARY JUDGMENT IN FAVOR OF APPELLEE. THE COURT GRANTED SUMMARY JUDGMENT AMID OTHER IRREGULARITIES. THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT BY GRANTING SUMMARY JUDGMENT TO APPELLEE, WHERE SUMMARY JUDGMENT WAS PRECLUDED BY THE EXISTENCE OF ONE OR MORE MATERIAL ISSUES OF FACT REQUIRED TO FIRST BE DETERMINED BY A JURY TRIAL. THE TRIAL COURT ERRED BY GRANTING SUMMARY JUDGMENT AGAINST APPELLANT, THE SUMMARY JUDGMENT HAVING BEEN BASED UPON FACTUAL FINDINGS MADE BY THE MAGISTRATE AND/OR THE COURT, AND SUCH FACTUAL DETERMINATIONS INVADED THE PROVINCE OF THE JURY IN THIS CASE, WHICH RESULTED IN A DEPRIVATION OF APPELLANT'S DUE- PROCESS RIGHTS. In these assigned errors, appellant essentially complains that due to errors made by the court below, the factual issues in this case were decided summarily and he was thus denied his right to have the disputed factual issues heard and decided by a jury. We agree. In his first assigned error, appellant contends that the order of events in the lower court was irregular, legally inconsistent and caused prejudice to him. Specifically, appellant complains that because the court failed to rule on his request for a jury trial in a timely fashion, the matter was referred to a magistrate resulting in a decision against him. On the other hand, appellees assert that pursuant to the rules, the court may refer any pretrial motion to a referee. A review of the record before us reveals that on March 19, 1997, the magistrate filed his recommendations on the various -8- motions pending before the court including appellees' motion for partial summary judgment on their counterclaim against appellant. No hearing was held, no additional evidence was presented on these motions. There is nothing in the record to indicate that the magistrate weighed the evidence or made factual findings to support his recommendations thus depriving appellant of his right to have a jury determine the factual issues. On the contrary, the magistrate determined where factual issues were in dispute and recommended that those issues remain for trial. Therefore, to the extent that factual issues remain to be decided in this case and the trial court granted appellant's request for a jury trial, we find appellant is entitled to a jury trial. Consistent with our further analysis of the issues presented wherein we find that factual issues do remain, appellant is entitled to have the factual issues of his declaratory judgment claims and any matters remaining on the counterclaim against him decided by a jury. Accordingly, we find appellant's first assignment of error to be moot. In his second assigned error, appellant complains that the trial court erred when it denied him additional time to furnish a report of a certified public accountant in order to more fully support his opposition to summary judgment on appellees' counterclaim. Essentially, appellant complains that the court's failure to grant him more time prejudiced him. Additional time may be permitted to a party opposing a motion for summary judgment pursuant to Civ.R. 56(F) which provides: -9- When affidavits unavailable. Should it appear from the affidavits of a party opposing the motion for summary judgment that he cannot for sufficient reasons stated present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or discovery to be had or may make such other order as is just. In Gates Mills Investment Co v. Pepper Pike (1978), 59 Ohio App.2d 155, the court stated `*** Civ.R. 56(F) requires the opposing party to submit affidavits with sufficient reasons stating why it cannot present by affidavit facts sufficient to justify its opposition. Mere allegations requesting a continuance or deferral of action for the purpose of discovery are not sufficient reasons why a party cannot present affidavits in opposition to the motion for summary judgment. There must be a factual basis stated and the reasons given why it cannot present facts essential to its opposition to the motion. If this is done, the trial court has several alternatives. It may refuse the application for summary judgment; it may order a continuance to permit affidavits to be obtained in opposition to the motion for summary judgment; it may grant a continuance for further discovery; or it may make such other order as is just. These are all within the trial court's discretion and are not mandatory. Civ.R. 56(F).' Id. at 169 [citations omitted]. Ramsey v. Edgepark, Inc. (1990), 66 Ohio App.3d 99. Therefore, a party opposing a motion for summary judgment may move the court for a continuance or deferral of the court's action by filing affidavits, but those affidavits must state sufficient reasons why he cannot present essential facts to justify his opposition to the motion and how the deferral would permit him to obtain such facts. When the request to the court is not supported by affidavits, the trial court is free to consider the merits of -10- the summary judgment motion without first ruling on the motion for a continuance. Grange Mut. Cas. Co. v. State Auto Mut. Ins. Co. (1983), 13 Ohio App.3d 217, paragraph one of the syllabus. Civ.R. 56(F) gives the trial court discretion when considering a motion for a continuance. Transamerica Fin. Serv. v. Stiver (1989), 61 Ohio App.3d 49. No abuse of discretion will be found unless the court's attitude is unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217. Our review of the record reveals that appellant's contentions in his request for a continuance were not set forth in affidavit form as required by the rule and, consequently, it was within the discretion of the trial court to rule on the summary judgment motion on the merits without granting a continuance. We find no abuse of discretion in the decision of the trial court to rule on the merits of the summary judgment motion without granting more time to gain the report of the CPA. Consequently, we find appellant's second assignment of error is not well taken. In his third and fourth assignments of error, appellant contends that the trial court erred in granting the motions for summary judgment where questions of fact remained. Specifically, appellant complains in his third assigned error that the magistrate made factual determinations upon which summary judgment was entered against him. In his fourth assignment of error, appellant contends that by entry of summary judgment the trial court invaded the province of the jury. These assignments of error, having a common basis in law and fact, shall be considered together. -11- An appellate court reviews the lower court's granting of summary judgment de novo.Brown v. Scioto Bd. of Commrs. (1993), 87 Ohio App.3d 704, 711. The appellate court applies the same test as the trial court as set forth in Civ.R. 56(C) which provides in relevant part: Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence in the pending case, and written stipulations of fact, if any, timely filed in the case show that there is genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. No evidence or stipulation may be considered except as stated in this rule. A summary judgment shall not be rendered unless it appears from such evidence or stipulation and only therefrom, that reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, such party being entitled to have the evidence or stipulation construed most strongly in his favor. It is well settled that the party seeking summary judgment bears the burden of showing that no genuine issue of material fact exists for trial. Celotex Corp. v. Catrett (1987) 477 U.S. 317; Mitseff v. Wheeler (1988), 38 Ohio St.3d 112, 115; Dresher v. Burt (1996), 75 Ohio St.3d 280. Doubts must be resolved in favor of the nonmoving party. Murphy v. Reynoldsburg (1992), 65 Ohio St.3d, 358- 359. Moreover, in accordance with Civ.R. 56(E), a nonmovant may not rest on the mere allegations or denials of his pleading but must set forth specific facts showing there is a genuine issue for -12- trial. Chaney v. Clark Cty. Agricultural Soc. (1993), 90 Ohio App.3d 421. The nonmoving party must produce evidence on any issue for which that party bears the burden of production at trial. Dresher v. Burt, supra. We first review the trial court's granting in part of appellee's application for partial summary judgment on their counterclaim against appellant. The counterclaim was brought pursuant to R.C. 2109.50, which provides in pertinent part: Upon complaint made to the probate court of the county having jurisdiction of the administration of a trust estate or of the county wherein a person resides against whom the complaint is made, by a person interested in such trust estate or by the creditor of a person interested in such trust estate against any person suspected of having concealed, embezzled, or conveyed away or of being or having been in the possession of any moneys, chattels, or choses in action of such estate, said court shall by citation, attachment or warrant, or, if circumstances require it, by warrant or attachment in the first instance compel the person or persons so suspected to forthwith appear before it to be examined, on oath, touching the matter of the complaint *** The probate court shall forthwith proceed to hear and determine the matter. The examinations, including questions and answers, shall be reduced to writing, signed by the party examined, and filed in the probate court. If required by either party, the probate court shall swear such witnesses as may be offered by either party touching the matter of such complaint and cause the examination of every such witness, including questions and answers, to be reduced to writing, signed by the witness and filed in the probate court. -13- *** R.C. 2109.50 et seq. creates a special proceeding which enables interested parties to recover concealed, embezzled, and conveyed assets of an estate. In re Estate of Coleman (1988), 55 Ohio App.3d 261. However, the statute is not intended as a substitute for a civil action to collect a debt, obtain an accounting, adjudicate rights under a contract or recover judgment for money owing an executor or administrator. Ukrainiec v. Batz (1982), 24 Ohio App.3d 200. The inquiry under R.C. 2109.50 focuses on the ownership of the asset and whether possession of the asset is being impermissibly concealed or withheld from the estate. Wozniak v. Wozniak (1993), 90 Ohio App.3d 400, 407. The purpose of the statute is not to furnish a substitute for a civil action to recover judgment for money owing to an administrator or executor but rather to provide a speedy and effective method for discovering assets belonging to the estate and to secure possession of them for the purpose of administration. Goodrich v. Anderson (1940), 136 Ohio St. 509; see, also, In re Black (1945), 145 Ohio St. 405. A party has stated an actionable cause under R.C. 2109.50 if he alleges that the asset is the exclusive property of the estate and that the defendant has unauthorized possession of the asset or in some way has impermissibly disposed of it. Id. But recovery for damages for breach of fiduciary duty relating to transactional fraud pursuant to a power of attorney is not within the jurisdiction of the probate court. Alexander v. Compton (1978), 57 Ohio App.2d 89, syllabus. -14- In order for an asset to belong to a probate estate, title to the asset must rest in the decedent upon her death. *** If title to personal property resides in the decedent upon her death, title to that property passes over to the executor or administrator of the estate ***, and the property can be properly considered probate property subject to a discovery proceeding under R.C. 2109.50. *** If, on the other hand, title does not reside in the decedent upon her death, but passed to a third party by inter vivos transaction or gift, then such property may not be included as an estate asset, and may not be retrieved by a summary proceeding in the probate court. *** [citations omitted]. Burns v. Daily (1996), 114 Ohio App.3d 693, 702-703. Appellees seek to include proceeds from checks written by appellant to cash in the inventory of the estate alleging appellant transferred to himself pursuant to his power of attorney. The holder of a power of attorney has a fiduciary relationship with his or her principal. Such a relationship is `one in which special confidence and trust is reposed in the integrity and fidelity of another *** by virtue of this special trust.' Stone v. Davis (1981),66 Ohio St.2d 74,78, 20 O.O.3d 64, 66-67, 419 N.E.2d 1094, 1097-1098. In such a relationship, the person who holds the power bears the burden of proof on the issue of the fairness of the transaction. Testa v. Roberts (1988), 44 Ohio App.3d 161, 166, 542 N.E.2d 654, 660. In re Scott (1996), 111 Ohio App.3d 273, 276. This court found in In re Estate of Popp (1994), 94 Ohio App.3d 640 that where no genuine issue of fact remained to go to the trier of fact and the complainant was entitled to judgment as a matter of law, [s]ummary judgment being one of the procedures -15- obtained in the probate court in an adjudication of case, may be in a R.C. 2109.50 proceeding if all the elements apply. However, we are mindful that summary judgment is a potentially useful, but extraordinary, procedure wherein the trial of issues of fact made up by the pleadings is avoided. Because summary judgment represents a shortcut through the normal litigation process by avoiding a trial, the burden is strictly upon the moving party to establish, through the evidentiary material permitted by the rule, that there is no genuine issue of material fact and that he is Civ.R. 56(C). (Emphasisusedentitled to added.) AAAA Enterprises Inc. v. River Place Community Urban Redevelopment Corp. (1990), 50 Ohio St.3d 157, 161. Appellees sought affirmative relief by moving for partial summary judgment on their amended counterclaim brought pursuant to R.C. 2109.50 against appellant asserting that no genuine issue of fact existed as to the ownership by the estate of the items claimed and that these items were wrongfully withheld. The assets alleged to have been withheld had a total estimated value of $65,585.83.1 The magistrate upon review of the motion, issued a report finding that on the matter of the Metropolitan Life proceeds 1Unpaid loans by the decedents to appellant, $12,000; Proceeds of the decendents' 1987 Ford Taurus, $2,500; Metropolitan Life Insurance proceeds, $2,645; Metropolitan Life Insurance proceeds, $1,453.04; Repayment of Wargo & Wargo check, $2,500; Oakleaf Village refund, $800.15; Berea Lake Retirement Community refund, $1,624.15; total of four checks to cash written on the parents' joint account, $4,276.46; total of eight checks to cash written on mother's account, $4,282.40; sale proceeds, $26,752.31--father's share of residential real estate; sale proceeds, $6,752.32-- mother's share of residential real estate. -16- endorsed with the power of attorney and the checks for cash written with the authority of powers of attorney, appellant, as a fiduciary, is required to prove the fairness of these transactions citing Bobko v. Sagen (1989), 61 Ohio App.3d 397. On that basis, the magistrate determined that no evidence was offered in response by the appellant and concluded summary judgment was proper as to the proceeds of the life insurance policies and the checks written to cash. Similarly, when considering whether the $33,000 from the proceeds received upon the sale of the parents' house which were deposited into appellants' own account were assets of the estate, the magistrate found that appellant bore the burden at trial to prove the fairness of the transactions, but appellant failed to do so. We find the magistrate's reliance on Bobko v. Sagen, supra, in this instance, to be misplaced. Bobko is distinguishable from the matter sub judice. In Bobko, the complaint was not brought pursuant R.C. 2109.50 but was brought for declaratory judgment to determine the assets of the estate. Moreover, in Bobko, trial was held to determine the validity of inter vivos transfers because if found to be invalid inter vivos transfers, the property would revert to the estate as an asset. We acknowledge that Ohio law requires that the recipient of an inter vivos gift prove by clear and convincing evidence that a gift was made. In re Fife's Estate (1956), 164 Ohio St. 449, 456. However, such is not the standard for a determination of a summary judgment motion. -17- Pursuant to Civ.R. 56(C), we have considered the pleadings, depositions, answers to interrogatories, affidavits, transcripts of evidence and documentary evidence submitted by the parties de novo. We recognize that some evidence submitted by each side included some materials not provided for by Civ.R. 56. However, the record does not indicate objection to the supporting evidence was made by either side. Consequently, we may review the evidence given the trial court's consideration and the lack of objection. Bowmer v. Dettelbach (1996), 109 Ohio App.3d 680. We have reviewed the evidence presented by appellees to support their claims to each of the items upon which the lower court granted summary judgment. First, the evidence presented by appellees to support their contention that appellant was guilty of converting the proceeds of his father's life insurance policy to which his mother was entitled as beneficiary consisted solely of appellant's response to the interrogatories, wherein he admitted he cashed the $2,645 check and he used the proceeds to pay various unknown bills for the benefit of his mother. We do not see this evidence as sufficient to support the conclusion that that this sum belongs to the estate due to a breach of appellant's fiduciary duty and, further, was wrongfully concealed from the estate. Consequently, we find summary judgment on the proceeds of the Metropolitan Life Insurance policy on the life of Herbert G. Schuerger to have been improvidently granted. Second, as to the proceeds of the Metropolitan Life Insurance policy on his mother's life, appellant admitted that he cashed the insurance check and -18- testified at his deposition that he is currently repaying $1,453.04 to Metropolitan Ins. Co. Although appellees argue that the proceeds from Marguerite Schuerger's policy clearly are to be included in the assets of the estate because the primary beneficiary of the policy was deceased, in fact, no evidence was presented to show that as to this policy where the primary beneficiary was deceased, the estate of the primary beneficiary became the secondary beneficiary of the policy. It is axiomatic that life insurance is a matter of contract. Karabin v. State Automobile Mutual Insurance Co. (1984), 10 Ohio St.3d 163. Proceeds from insurance policies are to be distributed according to the terms and provisions contained in the policy of insurance. White v. Ogle (1979), 67 Ohio App.2d 35. Appellees have placed no evidence into the record to demonstrate that the estate of either Herbert Schuerger or Marguerite Schuerger is the beneficiary of the proceeds as claimed by appellees. Consequently, the evidence presented on the Metropolitan Life Insurance policy proceeds for $1,453.04 on the life of Marguerite Schuerger is insufficient to support a summary determination. Next, the evidence presented by appellees to support the allegation of the concealment or embezzlement of the twelve checks negotiated by appellant totaling $8,558.86 consists of copies of the checks showing that appellant did, in fact, cash the checks, and affidavits to the effect that Marguerite Schuerger did not usually handle large amounts of cash or give cash gifts to her grandchildren. Although appellees thus raise the question as to -19- whether appellant actually gave this money to his mother and if so, what she did with it, we do not see this evidence as sufficient to conclusively indicate that appellant embezzled, concealed or withheld assets belonging to the estate. It must first be determined whether the checks were negotiated in breach of appellant's fiduciary duty and, therefore, constitute an asset which reverts to the estate. Appellees have presented no evidence that the negotiation of the checks was in breach of appellant's fiduciary duty. Therefore, we find summary judgment on the amounts represented by the twelve checks at issue to have been improperly granted. Finally, the evidence submitted by appellees to show that appellant appropriated $33,304.63 from the proceeds of the sale of the house and deposited those proceeds into appellant's personal account, simply shows that appellant did, in fact, deposit the check into his account. Appellant admits that he received the money for his own use and he claims that the this money was repayment for money which he gave to his mother in 1985. Appellant produced a document purportedly signed by his mother and dated in 1985 to support his contention that the money was in repayment. Consequently, the evidence presented by appellee does not conclusively prove that these assets should revert to the estates of his parents. Summary judgment is inappropriate when the moving party has not shown that he is entitled to judgment as a matter of law. Civ.R. 56(C). It is only where the moving party demonstrates that -20- no genuine issue of fact exists that it becomes incumbent upon the non-moving party to demonstrate affirmatively by appropriate evidence that a genuine issue of material fact does nevertheless exist in order to prevent the granting of the motion. Despite appellees' assertion to the contrary, the evidence presented by appellees does not conclusively show that the claimed items are assets which, by virtue of a breach of fiduciary duty of appellant, should revert to the estate and were wrongfully concealed or withheld from the inventory of the respective estates of his parents requiring the return of these assets to the estates, a finding of guilt of appellant and the imposition of penalty and interest pursuant to R.C. 2109.50. The evidence in the record reveals that appellant held a power of attorney in favor of his father and his mother. There is no question that he transacted financial matters for them during their last months of their lives. Appellant admits to cashing checks and depositing monies into his own accounts. Evidence of such transactions, including depositing the proceeds of the life insurance checks, checks for cash and the check for $33,504.63 from the proceeds of the sale of the parents' house into his personal account, even when taken in its entirety is insufficient to support a summary finding of guilt pursuant to the R.C. 2109.50.2 Consequently, we find that the trial court improvidently granted summary judgment on appellees' counterclaim against appellant brought pursuant to R.C. 2109.50 finding 2We note for the record that in contravention of the statutory requirement, the lower court did not in fact make a finding of guilt as to appellant. -21- appellant concealed assets of the estates of his parents; to-wit, the proceeds from the life insurance policies totaling $4,098.04, the value of twelve checks negotiated for $8,558.86 cash, and the $33,504.63 proceeds from the sale of the parents' home; and we reverse the judgment of the trial court. Finally, the trial court, without written opinion, granted appellees' motion to dismiss and/or summary judgment upon appellant's amended complaint and thereby dismissed appellant's declaratory action complaint in its entirety without declaring the rights of the parties as requested. In the motion to dismiss the complaint for declaratory judgment, appellees asserted that appellant had no standing to seek declaratory judgment on assets to which he asserts no personal ownership rights; that appellant never served a R.C. 2107.46 request upon the executrix to file suit; that appellant is barred by R.C. 2117.06 for claims against the estates; and that appellant's exceptions to the inventory were not timely filed pursuant to R.C. 2115.16. We find none of appellees' contentions to have merit. R.C. 2721.05 provides in pertinent part: Any person interested as or through an executor, *** legatee, heir, next of kin *** in the administration of a trust, or of the estate of the decedent *** may have a declaration of rights or legal relations in respect thereto in any of the following cases: *** (C) [t]o determine any question arising in the administration of the estate or trust, -22- including questions of construction of wills and other writings. Appellant, as a party interested in the assets included in the inventory of the respective estates, has the standing to bring an action in declaratory judgment pursuant to R.C. 2721.05. Wozniak v. Wozniak, id. at 400, 407-408. Where an inventory is approved without exceptions being taken it is not res judicata to a declaratory action seeking to include other assets. Eger v. Eger (1974), 39 Ohio App.2d 14. Declaratory judgment action may be brought in the probate court to determine the validity of inter vivostransfers where the property transferred would revert to the estate if the transfers are invalidated. Bobko v. Sagen (1989), 61 Ohio App.3d 397. Probate court has jurisdiction to determine the validity of inter vivos transfers where the property transferred would revert back to decedent's estate if transfers were found to be invalid. Id. Since the probate court is a court of limited jurisdiction, probate proceedings are restricted to those actions permitted by statute and by the Constitution. Corron v. Corron (1988), 40 Ohio St.3d 75; 531 N.E.2d 708, paragraph one of the syllabus. R.C. 2101.24 (A)(1)(k), 2721.03 and 2721.05(C) vest probate courts with jurisdiction over declaratory judgment actions upon questions relating to the administration of an estate. Zuendel v. Zuendel (1992),63 Ohio St.3d 733, 735-736, 590 N.E.2d 1260, 1262; see Wozniak v. Wozniak (1993), 90 Ohio App.3d 400, 407-408; 629 N.E.2d 500, 505. It has been held that a declaratory judgment action may be brought in the probate court to determine the validity of inter vivos transfers where the property transferred would revert to the estate if the transfers are invalidated. Bobko v. Sagen (1989), 61 Ohio App.3d 397, 406-407, 572 N.E.2d 823,829; see, also Corron, supra, 40 -23- Ohio St.3d at 79, 531 N.E.2d at 712; Carlin v. Mambuca (1994), 96 Ohio App.3d 500, 505, 645 N.E.2d 737, 740; Eger v. Eger(1974), 39 Ohio App.2d 14, 18, 68 O.O.2d 150, 153, 314 N.E.2d 394, 400. State ex rel Lipinski v. Cuyahoga Cty. Court of Common Pleas, Probate Div.(1995), 74 Ohio St.3d 19, 22. However, R.C. 2721.07 provides that a court of record may refuse to render judgment or enter a declaratory judgment when such judgment would not terminate the uncertainty or controversy giving rise to the proceeding. This discretion is limited and is erroneously exercised if the court refuses to render a declaratory judgment act and the judgment or decree would terminate the uncertainty or controversy giving rise to the proceeding. Celina Mut. Ins. Co. v. Sadler, (1966), 6 Ohio App.2d 161. Therefore, there are only two reasons for dismissing a complaint for declaratory judgment pursuant to Civ.R. 12(B)(6): (1) where there is no real controversy of justiciable issue between the parties, or (2) where the declaratory judgment will not terminate the uncertainty or controversy. Otherwise the court is required to issue a judgment declaring the rights or legal relations, or both of the parties, and the court errs when it dismisses the complaint for failure to state a claim under Civ.R. 12(B)(6). Fioresi v. State Farm Mut. Auto Ins Co. (1985), 26 Ohio App.3d 203. The record before us reveals that in the matter sub judice a real controversy exists; appellant has standing to bring the declaratory action, and a judgment by the court would terminate the uncertainty. In light of the record before us, a dismissal pursuant -24- to Civ.R. 12(B)(6) on appellant's complaint for declaratory judgment cannot be sustained. Consequently, we find that the trial court erred in dismissing the appellant's complaint without entering a declaration of the rights as to the request in the complaint. As an alternative to their motion to dismiss, appellees requested summary judgment on all claims in appellant's complaint for declaratory judgment. However, we find a declaratory judgment action which seeks a declaration of rights and obligations of parties is not the type of action ideally suited to disposition by summary judgment; therefore, the court fails to fulfill its function in declaratory judgment action when it disposes of issues by journalizing an entry merely sustaining or overruling a motion for summary judgment without setting forth any construction of document or law under consideration. Nickschinski v. Sentry Ins. Co.(1993), 88 Ohio App.3d 185. Therefore, the trial court's grant of summary judgment on appellant's complaint for declaratory judgment without determining the questions presented is error. Accordingly, we find assignments of error three and four well taken and find the decisions of the trial court granting partial summary judgment on appellees' counterclaim and granting appellees' motion to dismiss or alternatively for summary judgment on the complaint for declaratory judgment to be in error. The judgment of the lower court is reversed and the matter is remanded for proceedings consistent with this opinion. -25- This cause is reversed and remanded for further proceedings consistent with the opinion herein. It is, therefore, considered that said appellant recover of said appellees costs herein. It is ordered that a special mandate be sent to said 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. DYKE, P.J. and NAHRA, J., CONCUR. TIMOTHY E. McMONAGLE JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(D) and 26(A); Loc.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 .