[Cite as Haddad v. Maalouf-Masek, 2024-Ohio-1983.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT

COUNTY OF CUYAHOGA

TINA R. HADDAD, :

 

Plaintiff-Appellant, : No. 113132

v. :

NINA M. MAALOUF-MASEK, :

Defendant-Appellee. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED

RELEASED AND JOURNALIZED: May 23, 2024

Civil Appeal from the Cuyahoga County Court of Common Pleas 

Case No. CV-19-919904

Appearances:

Haddad Law Office and Tina Haddad, pro se.

Reminger Co., L.P.A., Timothy J. Gallagher, and Adam M. 

Fried, for appellee.

EILEEN A. GALLAGHER, P.J.:

Plaintiff-appellant, Tina Haddad (“Tina”), appeals the trial court’s 

order granting summary judgment in favor of defendant-appellee Nina M. MaaloufMasek (“Nina”) on Tina’s claims arising out of Nina’s alleged tortious interference 

with her expectancy of inheritance from their mother. 

For the reasons that follow, we affirm. 
Procedural and Factual Background

Tina and Nina are sisters. In 1995, their parents divorced. Shortly 

thereafter, their father was murdered. After their father died, Tina and Nina had 

joint ownership interests in the family business. In or around 1999, Tina bought out 

Nina’s share of the family business. Tina and Nina’s relationship thereafter

deteriorated.

On June 5, 2019, at the age of 85, their mother, Rosaline Haddad 

(“Rosaline”), died testate, with Tina and Nina as the sole heirs of her estate. In 2000, 

Rosaline executed a will that left her assets to Tina and Nina equally (the “2000 

will”). In 2004, Rosaline executed a second will that revoked her prior will and left

all of her assets — except for a $5,000 bequest to Tina — to Nina (the “2004 will”).

The 2004 will contained a no-contest clause that stated that anyone who contested 

the will would receive only $1. The 2004 will named Nina as the executor of her 

mother’s estate. 

In July 2019, the 2004 will was admitted to probate in the Cuyahoga 

County Court of Common Pleas, Probate Division, 2019 EST 244746. Nina was 

appointed executor of the estate. 

The General Division Action

On August 16, 2019, Tina filed the instant action, i.e., a “complaint for 

tortious interference with expectancy of inheritance,” against Nina in the Cuyahoga 

County Court of Common Pleas, General Division. She filed an amended complaint 

on October 30, 2019, asserting claims for intentional interference with expectancy 
of inheritance (the “IIEI claim”), unjust enrichment, conversion, constructive 

trust/accounting and damages under R.C. 2307.60(A) (the “general division

action”). In her amended complaint, Tina alleged that Rosaline had suffered from a 

number of “serious health issues” that “made her particularly susceptible,” including 

dementia and Alzheimer’s disease, had “limited ability to read and write in English”

and “relied heavily upon both her daughters for help with her daily life activities, 

financial and legal issues, and for emotional support.” She further alleged that (1) 

Nina (with whom Rosaline had lived from 1998 until she was placed in an assisted 

living facility or nursing home in 2016 or 2017) had a “confidential relationship” 

with Rosaline and “complete access and control over” Rosaline’s finances, bank 

accounts and other assets, (2) beginning in 2001, Nina “isolated” Rosaline, “badmouthed” Tina to Rosaline, prohibited Rosaline from seeing Tina and 

“threaten[ed]” Rosaline, (3) although Rosaline had had an estate worth nearly $2 

million when she divorced, including “extensive amounts of jewelry, coins, and 

personal property,” from 1998 until Rosaline’s death, Nina “transferred,” “diverted”

and “depleted” Rosaline’s assets, using Rosaline’s funds for her own benefit, until 

there were no funds or assets remaining at Rosaline’s death and (4) Nina “utilized 

her influence unduly” to compel Rosaline to change her will in 2004 from a “50/50 

split” of assets shared between Tina and Nina to leaving virtually all of her assets to 

Nina. Tina claimed that Nina had “intentionally interfered with [Tina’s] expectancy 

of an inheritance in [Rosaline’s] will, bank accounts, and personal property,” 

“exhibit[ing] undue influence and duress on Rosaline,” that Nina had been “unjustly 
enriched with Rosaline Haddad’s assets” and that Nina had converted, “engaged in 

theft” and “embezzled money and property * * * that was Rosaline’s, including bank 

accounts, jewelry, furs, and rings.” 

With respect to what assets Nina “transferred,” “diverted” and 

“depleted” and how Nina wrongfully “transferred,” “diverted” and “depleted” 

Rosaline’s assets for her own benefit, the amended complaint specifically alleged, in 

pertinent part:

27. Conservatively, the estate of Rosaline Haddad had in excess of 2 

million dollars. 

* * *

36. Between 2010 or 2012, Defendant had transferred some of Rosaline

Haddad’s bank accounts into joint and survivorship bank accounts 

under the names Rosaline Haddad and Nina Maalouf, joint with right 

of survivorship. These accounts were at Huntington National Bank. 

Defendant did not put any of her own money into the accounts. By 

2014, Defendant had transferred Mom’s $150,000 Certificate of 

Deposit at Third Federal into other financial institutions.

37. Between 2010 and 2012, Defendant utilized the services of bankers 

at Huntington National Bank and socialized with the bankers.

38. Beginning in 2012, and through 2013, 2014, 2015, 2016, and 2017

Defendant wrote numerous checks payable to “Cash” from the joint and 

survivorship accounts for unaccounted purposes. Some of these 

included a check for cash in December, 2015 for over $93,238.18; 

checks to cash for herself to purchase property located at 4963 E. 71st, 

Cuyahoga Heights, Ohio, and checks in 2017 to the Brunswick Auto 

Mart. None of these checks appear to be for Rosaline Haddad’s care or 

benefit. Upon information and belief, Defendant diverted Rosaline 

Haddad’s funds to other banks from 1998 to 2019.

* * * 

44. Throughout 2015-2019, Defendant depleted the joint and 

survivorship bank accounts at Huntington National Bank to the point 
there were little or no funds remaining. The checks are payable to cash 

and the funds are unaccounted for.

* * * 

48. Rosaline Haddad had extensive amounts of jewelry, coins, and 

personal property. All of that personal property, including all family 

photos, has been kept by Defendant and none shared or divided with 

Plaintiff. None of the items have been accounted for. Defendant has 

several times claimed that there were no assets owned “solely” by 

Rosaline Haddad and that Rosaline Haddad’s estate has assets worth 

$0.00.

49. Upon information and belief, Defendant has distributed Rosaline

Haddad’s property to her husband, her own children, and stepchildren.

* * * 

55. Defendant has been unjustly enriched with Rosaline Haddad’s 

assets, including bank accounts that became joint with right of 

survivorship, spending the bank accounts with numerous “cash” 

payments, particularly a 2015 check for over $93,000 to cash, an 

automobile purchase in 2017 when Rosaline Haddad had no license 

and was not driving, and payments of property taxes on other 

properties from Rosaline Haddad’s account that was not titled in 

Rosaline Haddad’s name. Rosaline Haddad did not gift these funds to

Defendant and they were not compensation for services rendered. It is 

unjust for Defendant to gain the benefit of these assets.

* * * 

58. Defendant had a confidential relationship with her mother for over 

twenty years and controlled all of her mother’s finances, bank accounts, 

assets. As such, she shifted bank accounts from Third Federal to 

Huntington National Bank and, upon information and belief, other 

financial institutions, used Rosaline Haddad’s assets for her own 

purposes and not for the benefit of Rosaline Haddad. Numerous 

checks were written to cash. Out of the hundreds of thousands of 

dollars, there was no accounting. Defendant never filed for a 

guardianship and has had unfettered control. All of Rosaline Haddad’s 

furs, jewelry, and items in her divorce decree have disappeared.
* * * 

61. Defendant took Rosaline’s bank accounts and assets from the 1994

divorce settlement and put them into joint with right of survivorship 

accounts, payable on death accounts. She has taken all of Rosaline’s 

jewelry, furs, furniture, belongings and deems them as her own.

* * * 

64. Defendant has engaged in theft and/or embezzled money and 

property and that was Rosaline’s, including bank accounts, jewelry, 

furs, and rings.

65. In late 2015, Defendant bought an apartment building in Cuyahoga

Heights for $220,000 and put a mortgage of $120,000. At the time, she 

wrote a check to Guardian Title for $5,000 and a check to Cash for 

$93,000. Title was placed in the name of Defendant and her husband, 

Billy Masek, even though it appears that the $100,000 down payment 

was likely from Rosaline’s Huntington National Bank account. There 

is no benefit at all to Rosaline from the transaction. Similarly, in 2017, 

Defendant wrote checks to the Brunswick Auto Mart for a car and an 

extended Warranty. Rosaline Haddad was not driving and did not have 

a license and there appears to be no benefit to Rosaline Haddad. There 

are numerous transactions payable to “cash” where Defendant signed 

Rosaline’s name even though it is clear that Rosaline did not sign the

check or had no idea what the check was for.

Tina averred that Rosaline “was a loving mother who loved both her 

children,” that despite Nina’s interference, Tina had regular contact with Rosaline

from 2001-2009 and that there was “a reasonable certainty that but for [Nina’s]

interference and conduct,” Tina “would have realized her expected inheritance of

50% of her mother’s estate.” Tina sought to recover compensatory and punitive 

damages from Nina, the imposition of a constructive trust on Rosaline’s assets and 

Nina’s “misappropriation of them since 1998,” an accounting of Rosaline’s assets 
and expenditures and an award of attorney fees and costs. Copies of the 2000 will 

and the 2004 will were attached to the amended complaint.1 

On November 13, 2019, Nina filed a motion to dismiss the amended 

complaint pursuant to Civ.R 12(B)(1) and (6). Nina argued (1) that Tina’s IIEI claim 

was not ripe because, under Ohio law, a plaintiff must first exhaust his or her probate 

or equitable remedies before he or she can pursue an IIEI claim and Tina had not 

pursued any probate or equitable remedies, (2) because the claims asserted by Tina 

in the amended complaint, “necessarily deal with the assets of her mother’s estate,” 

Tina lacked standing to bring them and the general division “lack[ed] jurisdiction to 

hear them” and (3) even assuming all of the allegations in the amended complaint 

were true, they failed to state a claim for which the trial court could grant relief to 

Tina. Nina also filed a motion to stay discovery pending a ruling on her motion to 

dismiss, arguing that the motion to dismiss tested the sufficiency of the complaint 

and no discovery was needed to oppose it. Tina opposed the motions. 

With respect to Nina’s motion to dismiss, Tina argued that (1) she had 

standing because she could prove the elements of an IIEI claim and had “a personal 

stake in the outcome of the case,” (2) a will contest would be futile because Nina had 

represented that there were “no assets to probate” and (3) her allegations were 

sufficient to state a claim for relief as to each of the causes of action asserted in the 

1 The amended complaint indicated that the “Divorce Decree of Rosaline Haddad 

in 1994” was attached as Exhibit C. However, the copy of the amended complaint that is 

in the record does not include an “Exhibit C.” A copy of the agreed judgment entry from 

Rosaline’s divorce, dated August 16, 1995, was submitted with Tina’s opposition to Nina’s 

motion for summary judgment. 
amended complaint. With respect to Nina’s motion to stay discovery, Tina argued 

that the trial court had instructed the parties to proceed with discovery and that the 

discovery she had served consisted of third-party subpoenas seeking financial 

information relating to Rosaline, which imposed no burden on Nina. On 

December 6, 2019, Nina filed a motion for protective order with respect to requests 

for admissions Tina had served on Nina and a motion to quash the subpoenas Tina 

had served on the financial institutions. Once again, Tina opposed the motions. 

The Will-Contest Action Filed in the Probate Division

On December 3, 2019, Tina filed a will contest action in the Cuyahoga 

County Court of Common Pleas, Probate Division, in Cuyahoga C.P. No. 2019 ADV

248638 (the “will contest action”), asserting that the 2004 will was the product of 

undue influence by Nina and that Rosaline had lacked testamentary capacity to 

execute the 2004 will.2 Tina requested that the 2004 will be set aside, that the 2000 

2 In Haddad v. Maalouf-Masek, 2022-Ohio-4085, 200 N.E.3d 1276, ¶ 6-7 (8th 

Dist.), this court described Tina’s allegations in the will contest action as follows:

In support of her undue-influence claim, Tina pertinently alleged that 

(1) Rosaline received over $2 million in her divorce settlement that was 

initiated in 1994; (2) Rosaline suffered from “serious health issues”; (3) 

Rosaline had limited ability to read and write in English; (4) Rosaline moved 

in with Nina in 1998 and remained there until she was placed in a nursing 

home; (5) Nina isolated Rosaline from Tina, “bad-mouthed” Tina, prohibited 

Rosaline from seeing Tina, and threatened to take Rosaline’s grandchildren 

away if she associated with Tina; (6) Nina controlled “almost every aspect of 

her mother’s life,” including all of Rosaline’s finances, emails, letters, and 

communications; (7) despite Nina’s threats, Rosaline maintained contact 

with Tina between 2001-2009; (8) Nina’s control over Rosaline’s bank 

accounts included transferring some of Rosaline’s bank accounts into joint 

and survivorship bank accounts with Nina; (9) “sometime between 2012 and 

2017,” Rosaline had dementia which had gotten so bad that she could no 

longer drive and was exclusively dependent on Nina; and (10) from 2012 
will be reinstated and that she be awarded a 10 percent surcharge and compensatory 

damages, prejudgment interest, attorney fees and costs. 

On December 11, 2019, the trial court issued an order staying the 

general division action until the will contest action was resolved. As corrected (via 

a nunc pro tunc entry on March 9, 2020), the order stated: 

As plaintiff has filed a will contest complaint * * *, all matters in this 

case are hereby stayed. All pending motions will be held in abeyance. 

Court to reinstate case to the active docket upon motion following the 

probate court’s resolution of all claims before it under Case No. 2019

ADV 248638.

The will contest action proceeded to trial in March 2022. On 

March 10, 2022, a jury returned a verdict finding the 2004 will to be valid and that 

it was not the result of undue influence.3 On April 5, 2022, the probate court entered 

judgment on the jury’s verdict. Tina appealed to this court, arguing that the trial 

court had given erroneous jury instructions, that the trial court had erred in 

admitting hearsay testimony and that the trial court had erred and abused its 

discretion in limiting discovery and the evidence presented at trial to the time period

2003-2005. Haddad, 2022-Ohio-4085, 200 N.E.3d 1276, at ¶ 28.

through 2017, Nina wrote numerous checks payable to cash from her joint 

and survivorship accounts with Rosaline.

In support of her contention that Rosaline lacked testamentary 

capacity, Tina alleged that Rosaline suffered from strokes and heart ailments, 

mental health issues, dementia, and was “functionally illiterate.”

 

3 At the close of Tina’s case-in-chief in the will contest action, Nina moved for a 

directed verdict on the lack-of-testamentary-capacity claim due to a lack of evidence, and 

Tina agreed to drop the claim. The trial continued on Tina’s claim that the 2004 will was 

the product of undue influence. Haddad at ¶ 19.
A final account was filed in Rosaline’s estate on June 23, 2022, which 

showed a distribution of $1 to Tina. The probate court approved the final account 

on August 2, 2022.

On November 17, 2022, this court affirmed the probate court’s 

judgment. Id. at ¶ 59-60. 

Summary Judgment Proceedings in the General Division Action

On May 26, 2023, Tina filed a “motion to lift stay of proceedings and 

reinstate case to active docket,” indicating that the will contest had been litigated 

and that the probate court’s decision was final. 

On May 30, 2023, Nina filed a “motion to lift stay and motion to 

convert motion to dismiss to motion for summary judgment.” She requested that 

the trial court convert her previously filed motion to dismiss plaintiff’s amended 

complaint into a motion for summary judgment and that it consider “supplemental 

arguments and facts” from the probate court proceedings that she contended 

supported judgment in her favor. Specifically, Nina argued that because the 2004 

will was deemed valid in the will contest action and, because Tina had received her 

expected inheritance under the 2004 will, i.e., $1, she had not suffered any damages 

and could not prove the elements of her IIEI claim as a matter of law. Nina argued 

that res judicata/issue preclusion barred relitigation of any issues decided in the 

probate court proceedings, including “which assets are owed to the Estate” and 

whether there was “wrongdoing by [Nina] that affected [Tina’s] inheritance through 

her mother’s estate,” and that Tina’s remaining claims were now “moot.” Nina 
pointed out that Tina had never objected to the inventory of estate assets (which 

identified $0 in estate assets) and that, even if Nina had received any improper inter 

vivos transfers of Rosaline’s probate assets, the remedy would be to return those 

assets to Rosaline’s estate. Likewise, Nina argued, if she had made any improper 

distributions from Rosaline’s bank accounts, the remedy would be to return those 

funds to those accounts. Given that Tina’s inheritance under the will was limited to 

$1 and given that there was no evidence Tina was ever a joint owner or beneficiary 

of any of Rosaline’s bank accounts, Nina asserted that Tina did not have “any 

possible damages” on any of her claims because she “couldn’t receive any more than 

she already has through her mother’s estate.” She asserted that “[o]nly if [Tina] had 

proved that the 2004 Will was invalid would her inheritance increase.”

In support of her motion, Nina attached an affidavit from her counsel,

in which he detailed the procedural history of the will contest action, described the

circumstances surrounding the probate court’s approval of the inventory and the 

account filed in the administration of Rosaline’s estate and averred that Tina “has 

received her full inheritance under the terms of [the 2004 will].” Nina’s counsel also 

authenticated several documents, copies of which he attached to his affidavit,

including: (1) the probate court’s judgment entry in the will contest action, (2) this 

court’s decision in Haddad, 2022-Ohio-4085, 200 N.E.3d 1276, (3) the inventory 

for Rosaline’s estate (stating “[n]o probate assets as of the filing of the [i]nventory”), 

(4) the probate court’s November 21, 2019 judgment entry approving the inventory, 

(5) the first partial account for the administration of Rosaline’s estate (listing “no 
assets”),(6) the probate court’s May 12, 2021 judgment entry approving and settling

the partial account, (7) the final account of the administration of Rosaline’s estate

(listing a $1 advance from the executor, a $1 distribution to Tina pursuant to the will

and no remaining assets), (8) the probate court’s July 29, 2022 judgment entry 

overruling Tina’s exceptions to the final account4 and (9) the probate court’s August 

2, 2022 judgment entry approving and settling the final account. 

Tina did not oppose Nina’s motion to lift the stay or her motion to 

convert her motion to dismiss into a motion for summary judgment. On June 14, 

2023, the trial court granted the parties’ motions to lift the stay, and Nina’s motion 

to dismiss was converted into a motion for summary judgment. Tina did not request 

a continuance to conduct further discovery or otherwise seek relief under Civ.R. 

56(F) prior to responding to Nina’s motion for summary judgment. 

On July 12, 2023, Tina filed her opposition to Nina’s motion for 

summary judgment. Tina asserted that Nina had not met her burden under Civ.R. 

56(C) and that, construing the evidence most strongly in Tina’s favor, there were 

4 Tina did not object to the inventory or first partial account and did not otherwise 

claim that any assets were missing from the estate in the administration of Rosaline’s 

estate. Tina’s exceptions to the final account were based on the pendency of her appeal 

in the will contest action. In overruling her exceptions, the probate court stated: 

The Court finds that the reason stated for the Exceptions is that a 

proceeding contesting the validity of Decedent’s Will is pending. The Court 

finds that the Will Contest action was resolved by jury verdict and Entry of 

this Court on March 10, 2022. The Court finds that although an appeal has 

been taken, no stay has been ordered by this Court or in the Court of Appeals. 

The Court finds that the Exceptions to Account are not well taken and 

are hereby denied and dismissed.
genuine issues of material fact with respect to each of the claims asserted in her 

amended complaint that precluded summary judgment. Tina argued that her 

claims in the general division action were not barred by res judicata because “[t]he 

will contest did not determine the merits of the matters brought forth in the 

Amended Complaint, the Probate Court had no jurisdiction to hear [such] matters 

and the matters before [the trial court in the general division action] involve[d]

different time periods and events.” Specifically, Tina argued that the ruling in the 

will contest action did not preclude relief in the general division action because (1) 

the “[p]robate proceedings had a limited discovery period from 2003-2005,” (2) the

“[t]he instant case * * * contemplates conduct by the defendant outside of the time 

period restrictions set by the Probate Court,” (3) most of Rosaline’s assets had been 

nonprobate assets, e.g., joint and survivorship bank accounts, (4) Tina’s claims in 

the general division action arose out of Nina’s “intentional interference with [Tina’s]

expectancy of an inheritance as it related to non-probate assets, post 2005,” not 

Rosaline’s probate estate and (5) the will contest action did not determine whether

Nina intentionally interfered with Tina’s expectancy of inheritance as it related to

those non-probate assets. In her opposition, Tina described Nina’s alleged 

wrongdoing as follows: 

[Nina] intentionally took possession of Rosaline Haddad’s assets 

including non-probate assets outside of the period of the will contest 

and without Rosaline Haddad’s consent. * * * [Nina] picked Rosaline’s 

estate clean prior to Rosaline’s death and probated an estate with no 

probate assets. [Nina] was never required to account for all the nonprobate assets and her many years of interfering with [Tina’s]

inheritance.
In support of her opposition, Tina submitted copies of (1) the probate 

court’s April 30, 2020 order, which limited discovery in the will contest action to the 

issues of undue influence and lack of testamentary capacity for the time period 

2003-2005 “unless Plaintiff can demonstrate that evidence outside that time frame 

is relevant to the issues in [the] case,” (2) this court’s decision in Haddad, 2022-

Ohio-4085, 200 N.E.3d 1276,(3) an agreed judgment entry from Rosaline’s divorce, 

dated August 16, 1995, identifying, among other things, the property distributions 

to each party in connection with the divorce, (4) an affidavit from Nina’s former 

friend, Jacqueline Aude (dated Sept. 16, 2020), (5) affidavits from two of Rosaline’s 

former coworkers in the family business, Sue David (dated May 9, 2020) and Alba 

Alaya (dated Apr. 8, 2021), who had “interacted with [Rosaline] regularly at work,”

5

(6) an excerpt from Nina’s deposition in the will contest action in which Nina 

claimed that Rosaline had gifted her jewelry sometime after 2005 and (7) her own 

affidavit (dated July 12, 2023), attaching copies of (a) an expert report prepared by 

Stephen G. Noffsinger, M.D. (dated Mar. 13, 2001) in connection with the will 

contest action,6 (b) excerpts from Rosaline’s federal income tax returns for 2003-

5 The affidavits of Aude, David and Alaya were captioned for the will contest action. 

Accordingly, many of the statements in their affidavits are focused on the matters that 

were at issue in the will contest, i.e., Rosaline’s testamentary capacity and Nina’s alleged 

exercise of undue influence. In their affidavits, David and Alaya do not indicate a time 

frame for when they “interacted with [Rosaline] regularly at work,” but in her appellate 

brief Tina asserts that Rosaline stopped working in the family business in 2002. 

6 In his expert report, Noffsinger opined that “Rosaline Haddad was vulnerable to 

undue influence on 10/27/04 when she signed her Last Will and Testament” and “[t]he 

changes in Rosaline Haddad’s 10/27/04 Last Will and Testament, when compared to her 
2013, which Tina stated she had obtained via subpoena from an accounting firm in 

2020, and (c) a chart Tina prepared summarizing Rosaline’s income from 2003-

2013 as reported on her tax returns.7 

In her affidavit, Tina averred that she had an “expectancy of 

inheritance” from her mother because her mother had told her that both she and her 

sister “would be taken care of equally,”

8 that “historically,” her mother had treated 

her and Nina equally, i.e., that “[i]f Nina got something, so did I,” that she did not 

know until 2019 that her mother had executed the 2004 will that “disinherited” her

and that, “[b]ut for Nina’s wrongful acts and tortious interference,” Tina “would 

have realized [her] expectancy.” 

Tina averred that when the general division action began and 

“discovery started,” she learned that Nina had transferred Rosaline’s assets, which 

had previously been in Rosaline’s name alone, into jointly owned assets with Nina 

as co-owner, that her mother’s 2003-2013 federal income tax returns “showed a 

systematic depletion” of Rosaline’s assets and that, after 2005, “Nina took control 

and drained [her] mother’s assets to the point where she was co-owner or [had] 

completely taken control of certain assets.” Tina claimed that she had had a “close 

2000 Last Will and Testament, are consistent with undue influence being exerted.” As 

indicated above, the jury disagreed.

 

7 Tina filed Nina’s deposition transcript with the trial court but only cited one 

excerpt from it in her opposition. Tina also “incorporate[d] by reference” her amended 

complaint and her opposition to Nina’s motion to dismiss.

8 Tina does not indicate when Rosaline made this statement.
relationship” with her mother until Nina began to undermine that relationship in 

2001 and that “[a]lthough forbidden to see her,” Rosaline would “sneak” to see her 

“until she could no longer drive.”9 Tina averred that Nina had “never presented a 

valid durable power of attorney for [their] mother” and that she had “returned the 

$1” Nina had distributed to her from their mother’s estate.

In her affidavit, Aude averred that she and Nina used to be “very close 

friends,” that she met Rosaline “sometime in the 1990s” and that from the late 1990s 

until 2013, she “visited regularly” with Rosaline. She further averred that “sometime 

in the early 2000s,” Nina and Tina had a falling out, that Nina “constantly badmouthed” Tina to Rosaline, “made all decisions” for Rosaline and “controlled every 

aspect” of Rosaline’s life and that although Nina had limited contact between 

Rosaline and Tina, Rosaline, nevertheless, continued to “regularly communicate 

and visit” Tina until “at least 2007,” when Rosaline’s “mental capacity began to 

rapidly deteriorate.” Aude stated that “[o]n multiple occasions,” Rosaline had 

showed her “a 20-drawer safe in her basement that included valuable jewelry, gold, 

and [loose] diamonds,”

10 that Nina had “used” Rosaline’s money and “transferred it 

to Huntington Bank to impress a banker with whom she had an intimate 

relationship” and that Rosaline had “historically treated her two daughters equally”

such that “[i]f one got something, so did the other.” She indicated that, in her 

9 Once again, the affidavit does not indicate when this occurred.

10 Aude does not indicate during what time frame this occurred.
opinion, “[Rosaline] would not have disinherited Tina” and that Nina had been 

“plotting to obtain all of her mother’s assets to the exclusion of Tina” “for years.” 

In their affidavits, David and Alaya averred, in relevant part, that

Nina “controlled most aspects of [Rosaline’s] life” and that Nina “constantly tried to 

drive a wedge between [Rosaline] and Tina.” They stated that although Nina told 

Rosaline she could not visit Tina, Rosaline continued to visit Tina in secret after the 

sisters’ falling out. They indicated Tina and Nina were “historically treated equally 

by their parents” such that “[i]f one got something, so did the other” and that during 

one of her visits to the shop Rosaline “confided” to David and Alaya that her will “left 

everything to her daughters 50/50.”11 

Tina argued that based on the evidence she presented, the trial court 

should “infer” that (1) “there were non-probate assets and legitimate expectations of 

inheritance via gift or survivorship accounts” and (2) “there was unjust enrichment, 

conversion, and theft.” 

Trial Court’s Ruling on Summary Judgment in the General 

Division Action

On August 2, 2023, the trial court granted Nina’s motion for 

summary judgment, “determin[ing] that there remain no genuine issues of material 

fact to be litigated and defendant is entitled to judgment as a matter of law.” The 

11 The affidavits do not indicate when Rosaline made these statements to David and 

Alaya, i.e., whether they were made before or after Rosaline executed the 2004 will. 
trial court entered summary judgment in favor of Nina and against Tina “as to all 

claims.” The trial court did not otherwise explain the basis for its ruling. 

Haddad appealed, raising the following three assignments of error for 

review:

Assignment of Error No. 1

The trial court erred to the prejudice of Appellant in granting 

Defendant’s Motion for Summary Judgment based ostensibly on the 

affirmative defense of res judicata in that 1) Defendant did not meet its 

Dresher burden; 2) the Civil Rule 56(C) evidence Plaintiff submitted 

showed that there were genuine issues of material fact and 3) res 

judicata did not apply to the probate proceedings.

Assignment of Error No. 2

The trial court erred to the prejudice of Plaintiff in lifting the stay and 

not allowing Plaintiff discovery on its stayed discovery requests where 

the summary judgment record and briefing showed the probate 

matters had limited discovery, did not involve the IIEI causes of 

actions, [and] were not within the probate court’s subject matter 

jurisdiction.

Assignment of Error No. 3

The lower court erred to the prejudice and rendered illusory 

Appellant’s rights to causes of action under Ohio Supreme Court cases

Firestone v. Galbraith and Jacobson v. Kaforey. Transforming res 

judicata into a docket-clearing device club beyond limits, as applied to

Appellant, the lower court violated Appellant’s right to remedy under

Art. I, Section 16 of the Ohio Constitution both in denying any remedy 

and in creating undue delay.

Law and Analysis

Ruling on Summary Judgment Without Allowing Tina to Conduct 

Additional Discovery

For ease of discussion, we consider Tina’s second assignment of error 

first. In her second assignment of error, Tina contends that the trial court erred in 
lifting the stay and ruling on Nina’s motion for summary judgment without allowing 

her to conduct additional discovery. Tina’s argument is meritless. 

If a party opposing a summary judgment motion “‘finds itself having 

to respond to a summary judgment motion before adequate discovery is completed’” 

or otherwise requires additional time to present evidence of facts necessary for his 

or her opposition to summary judgment, the party may seek relief under Civ.R. 

56(F). Commons at Royal Landing, LLC v. Whitehall, 10th Dist. Franklin No. 15AP240, 2016-Ohio-362, ¶ 8, quoting Taylor v. XRG, Inc., 10th Dist. Franklin No. 

06AP-839, 2007-Ohio-3209, ¶ 16.

Civ.R. 56(F) provides: 

Should it appear from the affidavits of a party opposing the motion for 

summary judgment that the party cannot for sufficient reasons stated 

present by affidavit facts essential to justify the party’s 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 other words,

Civ. R. 56[F] affords a party a mechanism whereby it can seek 

deferral of action on a motion for summary judgment so that it may 

obtain affidavits opposing the motion or conduct discovery relevant to 

it. * * * 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 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).

Gates Mills Inv. Co. v. Pepper Pike, 59 Ohio App.2d 155, 168-169, 392 N.E.2d 1316

(8th Dist.1978). But see Prohazka v. Ohio State Univ. Bd. of Trustees, 10th Dist. 

Franklin No. 03AP-616, 2004-Ohio-1601, ¶ 30-31 (where plaintiff did not submit a 

supporting affidavit, “[t]he trial court was without authority to provide plaintiff with 

relief under Civ.R. 56(F)”). 

On page 10 of her opposition to Nina’s motion for summary 

judgment, Tina referenced a need for additional discovery to support her claims. 

She stated: 

Rosaline’s tax returns show she had bank accounts, but discovery is 

needed for the beneficiary designations and changes thereto. 

Defendant has never provided those and has impeded this discovery 

claiming it is outside 2003-2005, (in the Probate litigation), and here 

(refusing to respond to discovery requests) and discovery had stopped 

due to the stay.

(Emphasis added.)

Tina, however, did not file a motion for continuance pursuant to 

Civ.R. 56(F), she did not submit an affidavit pursuant to Civ.R. 56(F) explaining her 

need for additional discovery to obtain facts necessary to oppose Nina’s summary 

judgment motion,

12 she did not oppose Nina’s motion to convert her motion to 

dismiss into a motion for summary judgment and, although she reportedly served 

12 Although Tina submitted an affidavit with her opposition to Nina’s motion for 

summary judgment, as detailed above, she not indicate, in her affidavit, that she needed 

further discovery to present facts essential to her opposition. 

 
requests for admission on Nina prior to the stay, she did not seek to have the stay 

lifted with respect to those requests and did not engage in any additional discovery

after the stay was lifted.

13 There is nothing in the record to indicate that Tina had 

served any interrogatories or requests for production on Nina, had issued any 

additional third-party subpoenas or had noticed any depositions prior to filing her 

opposition brief.

As the Tenth District explained in Nationstar Mtge. LLC v. Payne, 

10th Dist. Franklin No. 16AP-185, 2017-Ohio-513, ¶ 16, a party who fails to seek relief 

in the trial court under Civ.R. 56(F) based on a need for discovery fails to preserve 

the issue for appeal:

Generally, Civ.R. 56(F) provides the sole remedy for a party who 

must respond to a motion for summary judgment before it has 

completed adequate discovery. Mootispaw v. Mohr, 10th Dist. 

Franklin No. 15AP-885, 2016-Ohio-1246, ¶ 10; Commons at Royal 

Landing, LLC v. Whitehall, 10th Dist. Franklin No. 15AP-240, 2016-

Ohio-362, ¶ 8. Pursuant to Civ.R. 56(F), a party may request that the 

trial court defer ruling on the motion for summary judgment pending 

the completion of discovery. Mootispaw at ¶ 10; Commons at Royal 

Landing at ¶ 9. When a party fails to move for a Civ.R. 56(F) 

continuance, a trial court may grant summary judgment to the moving 

party even if discovery remains incomplete. Mootispaw at ¶ 10; 

Commons at Royal Landing at ¶ 11. * * * [T]he party that fails to move 

for a Civ.R. 56(F) continuance does not preserve his right to challenge 

the adequacy of discovery on appeal. Mootispaw at ¶ 10.

13 Requests for admission are self-executing. See, e.g., Riddick v. Taylor, 2018-

Ohio-171, 105 N.E.3d 446, ¶ 22 (8th Dist.). Accordingly, contrary to Tina’s assertion in 

her opposition, Nina could not have simply “refus[ed] to respond” to them. If Nina failed 

to respond to Tina’s requests for admission, the requests would be deemed admitted. See

Civ.R. 36(A)(1); see also Black v. Hicks, 2020-Ohio-3976, 157 N.E.3d 193, ¶ 65 (8th Dist.) 

(“Under Civ.R. 36(A), * * * if a party fails to respond to a request or an admission, the 

matter is automatically deemed admitted and no further action is required by the party 

requesting it.”).
See also Maschari v. Tone, 103 Ohio St.3d 411, 2004-Ohio-5342, 816 N.E.2d 579, 

¶ 20 (“‘[A] party who fails to seek relief under Civ.R. 56(F) in the trial court does not 

preserve its rights thereto for purposes of appeal.’”), quoting Taylor v. Franklin 

Blvd. Nursing Home, Inc., 112 Ohio App.3d 27, 30, 677 N.E.2d 1212 (8th Dist.1996); 

WFG Natl. Title Ins. Co. v. Meehan, 2018-Ohio-491, 107 N.E.3d 60, ¶ 19 (8th Dist.) 

(“If an opposing party requires additional time to produce facts essential to the 

opposition motion, the party may seek a continuance under Civ.R. 56(F). * * * A 

party who fails to seek relief under Civ.R. 56(F) in the trial court fails to preserve the 

issue on appeal.”); Jackson v. Walker, 9th Dist. Summit No. 22996, 2006-Ohio4351, ¶ 17 (“A party needing evidence to oppose a motion for summary judgment, 

but ‘who fails to seek relief under Civ.R. 56(F) in the trial court does not preserve his 

rights under the rules for purposes of appeal.’”), quoting R&R Plastics, Inc. v. F.E. 

Myers Co., 92 Ohio App.3d 789, 798, 637 N.E.2d 332 (6th Dist.1993).

Because Tina did not seek relief under Civ.R. 56(F), the trial court did 

not err in granting Nina’s motion for summary judgment even though Tina had not 

obtained the discovery she “sought or planned to seek.” Payne at ¶ 17. 

Tina’s second assignment of error is overruled. 

Trial Court’s Decision on Summary Judgment

In her first assignment of error, Tina contends that the trial court 

erred in granting Nina’s motion for summary judgment because (1) Nina did not 

meet her burden, as the moving party, under Civ.R. 56(C), (2) the Civ.R. 56(C) 

evidence Tina submitted showed that there were genuine issues of material fact for 
trial, (3) res judicata did not bar her causes of action based on the probate 

proceedings and (4) under Dresher v. Burt, 75 Ohio St.3d 280, 292-293, 662 N.E.2d 

264 (1996), any inferences regarding the evidence must be construed in her favor. 

Standard of Review

We review summary judgment rulings de novo, applying the same 

standard as the trial court. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 

N.E.2d 241 (1996). We accord no deference to the trial court’s decision and conduct 

an independent review of the record to determine whether summary judgment is 

appropriate. 

Under Civ.R. 56, summary judgment is appropriate when no genuine 

issue exists as to any material fact and, viewing the evidence most strongly in favor 

of the nonmoving party, reasonable minds can reach only one conclusion that is 

adverse to the nonmoving party, entitling the moving party to judgment as a matter 

of law. Id. On a motion for summary judgment, the moving party carries an initial 

burden of identifying specific facts in the record that demonstrate his or her 

entitlement to summary judgment. Dresher at 292-293. If the moving party fails 

to meet this burden, summary judgment is not appropriate; if the moving party 

meets this burden, the nonmoving party has the reciprocal burden to point to 

evidence of specific facts in the record demonstrating the existence of a genuine 

issue of material fact for trial. Id. at 293. “Material facts are those facts that might 

affect the outcome of the suit under the governing law of the case.” Werman v. 

Green, 11th Dist. Lake No. 2000-L-033, 2001 Ohio App. LEXIS 1555, 3 (Mar. 30, 
2001). Summary judgment is appropriate if the nonmoving party fails to meet this 

burden. Dresher at 293. 

Evidence (or Lack of Evidence) to Support Claims Asserted in the 

General Division Action

In her amended complaint, Tina asserted five counts against Nina:

(1) an IIEI claim, (2) unjust enrichment, (3) conversion, (4) damages under R.C. 

2307.60(A) and (5) constructive trust/accounting. 

Tina argues that Nina failed to meet her “initial Dresher burden” on 

summary judgment because (1) she “provided no pleadings, * * * no stipulations, no 

answers to interrogatories * * * [,] no transcripts of evidence” and no affidavit 

denying that she engaged in the conduct alleged in the amended complaint, (2) 

“[n]one of [Nina’s] Civ.R. 56(C) materials speak to an expectancy of inheritance” 

and (3) Nina’s Civ.R. 56(C) materials “flow from a false assumption that all 

Rosaline’s assets were probate assets.” 

Nina responds that the trial court could have dismissed Tina’s claims 

based on the allegations of her amended complaint alone but that because Nina also 

relied on the facts of Rosaline’s estate administration and the results of the will 

contest action to support her legal arguments — evidence of facts outside the four 

corners of Tina’s amended complaint — she requested that the trial court convert 

her motion to dismiss into a motion for summary judgment. Nina asserts the trial 

court properly granted summary judgment on Tina’s IIEI claim because (1) her 

“complaint makes it clear” that her IIEI claim was based on an expectancy of 
inheritance from her mother’s probate estate, (2) the only “expectancy of 

inheritance” Tina could have had, given that the 2004 will was determined to be 

valid in the probate court action, was the inheritance specified in the will, i.e. $1, and 

(3) Tina realized that inheritance in full, following her mother’s death. With respect 

to Tina’s other causes of action, Nina asserts that the trial court properly granted 

summary judgment on those claims because they were “based on allegations of acts 

between [Nina] and Rosaline,” i.e., that Nina “did some wrong to Rosaline or 

Rosaline’s property,” not based on any conversion, misappropriation or theft of any 

property owned by Tina. (Emphasis deleted.)

Tina acknowledges that she cannot relitigate, in this case, the probate 

court’s determination in the will contest action that the 2004 will was valid and was 

not the product of undue influence by Nina. Appellant’s Brief at 16 (“Collateral 

estoppel is quite limited here and only applies to the 2004 [w]ill and the ruling that

it was not the product of undue influence. That is all the jury decided.”); see also In 

re Estate of Goehring, 7th Dist. Columbiana Nos. 05 CO 27 and 05 CO 35, 2007-

Ohio-1133, ¶ 67 (“The tort of intentional interference with the expectancy of 

inheritance cannot be used to bypass the probate court or to overturn the probate 

court’s determination of the validity of a will due to the probate court’s exclusive 

jurisdiction in these areas.”). However, Tina argues that res judicata did not bar her 

claims in the general division action because none of those claims could have been 

brought in the will contest action and “a will contest and an IIEI proceeding are 

completely different causes of action, with different parties, different elements of 
proof, and burdens of proof.” Tina contends that Nina mischaracterizes her IIEI

claim and asserts that, based on the allegations of her amended complaint, her

“expectancy of inheritance” was “more than what was in the will” and that their 

mother had “substantial” non-probate assets of which there was a reasonable 

certainty Tina would have realized “an expected inheritance of 50%” were it not for 

Nina’s interference, diversion, conversion and theft. Tina asserts that trial court was 

required to draw all inferences from the evidence in her favor, including “inferences”

that “there were non-probate assets,” that Tina had “legitimate expectations of 

inheritance via gift or survivorship accounts” and that “there was unjust enrichment, 

conversion, and theft,” and that the trial court erred in failing to do so. 

Contrary to Tina’s assertion, to prevail on her motion for summary 

judgment, Nina was not required to present affidavits or other evidence disproving 

the allegations of wrongdoing in Tina’s amended complaint. See Civ.R. 56(B) (“A 

party against whom a claim * * * is asserted * * * may, at any time, move with or 

without supporting affidavits for a summary judgment in the party’s favor as to all 

or any part of the claim * * * .”) (emphasis added); Civ.R. 56(C) (“Summary 

judgment shall be rendered forthwith if the pleadings, depositions, answers to 

interrogatories, written admissions, affidavits, transcripts of evidence, and written 

stipulations of fact, if any, timely filed in the action, show that there is no genuine 

issue as to any material fact and that the moving party is entitled to judgment as a 

matter of law.”) (emphasis added). Rather, Nina, as the moving party, bore the 

initial burden of informing the trial court of the basis for her motion and identifying 
those portions of the record (referencing proper Civ.R. 56(C) materials) that 

demonstrated the absence of a genuine issue of material fact relevant to the basis on 

which she moved for summary judgment. Summary judgment may be granted in 

favor of a defendant where the pleadings, other relevant Civ.R. 56(C) materials and 

the applicable law clearly establish that the plaintiff has no legally cognizable cause 

of action against the defendant based on the alleged facts. 

As discussed in greater detail below, Nina met her initial burden 

under Civ.R. 56(C) by pointing to Civ.R. 56(C) materials — i.e., Tina’s amended 

complaint and the affidavit of Nina’s counsel attaching copies of the judgment 

entries from the will contest action and the administration of Rosaline’s estate —

that showed that Tina could not establish essential elements of her claims against 

Nina and that Nina was, therefore, entitled to judgment as a matter of law. This 

triggered Tina’s reciprocal burden to point to evidence of specific facts in the record 

demonstrating the existence of a genuine issue of material fact for trial on her 

claims. See Civ.R. 56(E) (“When a motion for summary judgment is made and 

supported as provided in this rule, an adverse party may not rest upon the mere 

allegations or denials of the party’s pleadings, but the party’s response, by affidavit 

or as otherwise provided in this rule, must set forth specific facts showing that there 

is a genuine issue for trial. If the party does not so respond, summary judgment, if 

appropriate, shall be entered against the party.”). Tina, however, did not meet her 

burden here. While the nonmoving party to a summary judgment motion is entitled

to all reasonable inferences in his or her favor, an inference can only be made if it is
reasonable and based on established facts. Krause v. Marc Glassman, Inc., 8th Dist.

Cuyahoga No. 85991, 2005-Ohio-5989, ¶ 8, citing Hurt v. Rogers Transp. Co., 164

Ohio St. 329, 332, 130 N.E.2d 820 (1955). Viewing the evidence in the light most 

favorable to Tina, we find that there are no genuine issues of material fact and that 

Tina cannot prevail on any of her claims against Nina as a matter of law. 

Accordingly, the trial court did not err in entering summary judgment in favor of 

Nina. 

Intentional Interference with Expectancy of Inheritance

“‘One who by fraud, duress or other tortious means intentionally 

prevents another from receiving from a third person an inheritance or gift that he 

would otherwise have received is subject to liability to the other for loss of the 

inheritance or gift.’” Firestone v. Galbreath, 67 Ohio St.3d 87, 88, 616 N.E.2d 202 

(1993), quoting Restatement of the Law 2d, Torts, Section 774B, at 58 (1979).

To prevail on an IIEI claim, a plaintiff must prove the following 

elements: (1) the existence of an expectancy of inheritance in the plaintiff, (2) an 

intentional interference by the defendant with that expectancy of inheritance, (3) 

conduct by the defendant involving the interference that is tortious in nature, such 

as fraud, duress, or undue influence, (4) reasonable certainty that the expectancy of 

inheritance would have been realized but for the interference by the defendant and

(5) damage resulting from the interference. Firestone at 88.

The first element of an IIEI claim requires the plaintiff to identify 

what he or she expected to inherit and to show that the plaintiff, in fact, had an 
“expectancy” of “inheritance” with respect to that property. As stated above, Tina 

has conceded that she cannot relitigate in this case the probate court’s 

determination in the will contest action that the 2004 will was valid and was not the 

product of undue influence by Nina. Given that Tina contested the 2004 will, her 

inheritance under the will was limited to $1 regardless of the amount of assets in her 

mother’s probate estate. 

However, Tina argues that these findings did not bar her IIEI claim 

because her amended complaint “did not center on her belief that there should be 

more asserts in their mother’s probate estate,” but rather, “asserted and pled” that

Rosaline had “non-probate assets worth several million dollars” that Tina would 

have inherited were it not for Nina’s interference. The essence of Tina’s argument 

is that, if it were not for Nina’s interference, Tina would not only have inherited 

assets through the will, but also through other non-probate transfers, e.g., gifts from 

her mother or as a beneficiary on her mother’s bank accounts. Tina contends that 

her expectancy of inheritance of “substantial” non-probate assets could be inferred 

from her status as one of Rosaline’s two children and the statements in her affidavit

and the affidavits of Aude, David and Ayala, that Tina and Rosaline had once had a 

close relationship, that Rosaline had “historically” treated her daughters equally and

that Rosaline had, at one point, “confided” to her coworkers that her will left 

everything to her children “50/50.”

14 

14 As noted above, the affidavits are silent as to exactly when these confidences 

were shared. However, given that Tina has asserted that her mother stopped working at 
We disagree. The fact that Tina was one of Rosaline’s daughters and 

had once had a close relationship with her mother was not enough to establish an 

expectancy of inheritance. See, e.g., Holt v. Sawyer, 180 Ohio App.3d 255, 2008-

Ohio-6686, 905 N.E.2d 213, ¶ 9 (1st Dist.); Werman, 2001 Ohio App. LEXIS 1555, 

at 6-7. 

In Holt, the appellant argued that she had presented sufficient

evidence that she had an expectancy of inheritance from her father’s estate to survive 

summary judgment on an IIEI claim where she was the beneficiary of her deceased 

father’s life insurance policy when he divorced her mother, she had had “secret 

meetings” with her father and was his sole surviving child. Id. at ¶ 9. Under his will, 

her father left his entire estate to his wife (i.e., the appellant’s stepmother). Id. at 

¶ 3. The appellant alleged that her stepmother had “broken up” her father’s first 

marriage, that she had attempted to exclude the appellant and her brother from their 

father’s life and that the appellant had met with her father in secret, before 

ultimately losing contact with him, because her stepmother disapproved of their 

meetings. Id. at ¶ 2. The plaintiff did not, however, “allege or show” that she had 

been promised any inheritance by her father. Id. at ¶ 9. The First District found that 

the fact that the plaintiff was his daughter and was a beneficiary on his life insurance 

policy was “not sufficient to create an expectancy.” Id. 

the family business in 2002, it appears this occurred before she executed her 2004 will.

In any event, it was many years before her death in 2019.

 
In Werman, 2001 Ohio App. LEXIS 1555, the appellants were nieces 

and nephews of the decedent, “part of a small family,” who each received $1 from 

their aunt’s estate at the time her will was probated Id. at 6-7 and fn. 3. They argued 

that, based on the fact that they were related to the decedent and that “comments 

[had] been made in the past suggesting that certain heirlooms would be kept in the 

family,” they had a reasonable expectancy of a greater inheritance. Id. at 5. In 

affirming the trial court’s decision granting summary judgment in favor of the 

appellee, the Eleventh District rejected the appellants’ attempt to recover based on 

“hunches and mere speculation.” Id. at 7-8. The court indicated that there was no 

evidence that the decedent had promised them that they were going to inherit under 

her will and none of the appellants had seen a copy of her will. Id. at 6. The court 

also noted that appellants had had little or no contact with their aunt in the 15 years 

prior to her death and that she had not given appellants any gifts or money for many 

years. Id.

Tina offered no evidence of a promise or other statements by her 

mother that indicated her intent to gift Tina any particular assets or property (either 

during her lifetime15 or upon her death) or her intent to make Tina a joint owner or 

15 In her reply brief, Tina asserts that were it not for Nina’s interference, Tina would 

have received a share of Rosaline’s assets not only as non-probate assets upon her death 

but also as gifts during her lifetime. She explains:

Gifts. It is common knowledge and common sense that parents make inter 

vivos gifts to their children in their lifetime. It is also common sense that if 

one doesn’t visit or get to see one’s parents, one gets fewer gifts. [Nina’s] bad 

mouthing and isolating of Rosaline — and all the Thanksgivings, 
beneficiary of any particular asset that would have transferred outside of probate 

following her death. The only evidence of specific facts presented regarding 

Rosaline’s intent with respect to Tina’s inheritance was the 2004 will. Tina did not 

claim that Rosaline had ever expressed a desire (or had taken any steps) to change 

her 2004 will.16 The vague, nonspecific assertions in the affidavits Tina submitted

and Tina’s speculation that Rosaline would have given her more were it not for 

Nina’s alleged interference do not create a genuine issue of fact that Tina had a 

reasonable expectation of inheritance beyond the inheritance provided in the 2004 

will. See, e.g., Jochum v. Listati, 8th Dist. Cuyahoga No. 106957, 2019-Ohio-166, 

¶ 9 (“An affidavit submitted on summary judgment must contain more than general, 

conclusory assertions to create a genuine issue of material fact for trial.”); Sigler v. 

Christmases, and Easters that she forbade Tina from seeing Rosaline, 

decreased the flow of gifts. 

In this case, however, Tina asserted a claim for intentional interference with 

expectancy of inheritance, not intentional interference with expectancy of a gift. 

“[I]nheritance means that the property passes after the owner’s death.” Brown v. 

Ralston, 2016-Ohio-4916, 67 N.E.3d 15, ¶ 20 (7th Dist.). Even if Tina had asserted a claim 

for intentional interference with expectancy of an inter vivos gift, we could not say, based 

on the record before us, that the trial court erred in granting Nina’s motion for summary 

judgment because Tina has not pointed to any evidence in the record sufficient to create 

a genuine issue of material fact that Tina had an expectancy of a gift as to any of Rosaline’s 

assets and that there was a reasonable certainty that any such expectancy of a gift would 

have been realized but for Nina’s alleged interference. 

16 In Kaufman v. Kaufman, Cuyahoga C.P. No. CV-17-884086 (May 2, 2023), by 

contrast, the sole case Tina cites in her brief as being “similar” to this case, specific 

evidence was presented on summary judgment that the decedent had told her children

and her attorney that she wanted to revise her estate plan to include all of her children 

and had been taking substantial steps to do that when one of her children interfered in 

those efforts. No such evidence was presented here.
Burk, 3d Dist. Crawford No. 3-16-19, 2017-Ohio-5486, ¶ 50, 81 (“vague and 

conclusory” references failed to create a genuine issue of material fact for trial); 

Davis v. Royal Paper Stock Co., Inc., 2022-Ohio-4135, 201 N.E.3d 506, ¶ 72 (12th

Dist.) (“Mere speculation,” “unsupported factual assertions” and “anecdotal 

allegations” are “insufficient to create genuine issues of fact.”); Turnmire v. 

Turnmire, 2022-Ohio-3968, 200 N.E.3d 604, ¶ 28 (12th Dist.) (“‘Mere speculation 

is insufficient to create a genuine issue of material fact to avoid summary 

judgment.’”), quoting Fontain v. H&R Cincy Properties, LLC, 2022-Ohio-1000, 187 

N.E.3d 1, ¶ 67 (12th Dist.). 

Even assuming Nina had made all the property transfers alleged in 

the amended complaint, Tina has not shown that a genuine issue of fact exists as to 

whether those transfers “interfered” with, or otherwise resulted in, a reduction of 

any inheritance she would have otherwise received — through probate or otherwise

— causing damages to Tina. It is undisputed that Tina’s inheritance under the 2004 

will was limited to $1. Tina has not claimed, much less presented any evidence, that 

she had ever been a joint owner or beneficiary of any of Rosaline’s accounts. Tina 

has not alleged Nina had removed Tina (or used her influence to compel Rosaline to 

remove Tina) as a joint owner or beneficiary on any account. 

If any beneficiary or joint ownership designation on Rosaline’s 

accounts had been successfully challenged and invalidated, or if any other inter vivos 

transfer of Rosaline’s assets had been successfully challenged and invalidated, the 

subject assets would have either been returned to Rosaline’s accounts (and, in 
accordance with the terms of those accounts, become the exclusive property of Nina

upon Rosaline’s death) or reverted to Rosaline’s estate and distributed to Nina in 

accordance with the 2004 will. See, e.g., In re Stowers, 11th Dist. Ashtabula No. 95-

A-0009, 1995 Ohio App. LEXIS 5038, 8-10 (Nov. 9, 1995) (“The existence of a joint 

and survivorship bank account * * * raises a conclusive presumption that the 

survivor of the account, upon the death of the depositor, owns the money in the 

account. * * * Even if we were to now find that [appellee] exceeded her authority in 

making some or all of the transactions at issue [during the decedent’s lifetime] and 

required that she return the money to the estate, the estate would have no authority 

other than to distribute it to appellee as the survivor on the accounts. * * * Once the 

death of the depositor occurs, all moneys allegedly misused by the beneficiary would 

go to the survivor anyway, resulting in any challenge being moot.”); In re Estate of 

Meloni, 11th Dist. Trumbull No. 2003-T-0096, 2004-Ohio-7224, ¶ 43-44 

(appellant’s contention that appellee improperly disbursed funds through 

gratuitous transfers was “moot” where the transfers “originated from withdrawals 

of funds, prior to [the decedent’s] death, from joint and survivorship accounts to 

which appellant was not entitled to a survivorship interest”); Wright v. Bloom, 69 

Ohio St.3d 596, 635 N.E.2d 31 (1994), paragraph three of the syllabus (if joint and 

survivor designation on a bank account is invalid, funds belong exclusively to 

depositor’s estate upon death); Swank v. Swank, 5th Dist. Richland No. 2011 CA 8, 

2011-Ohio-6920, ¶ 83-84 (successful challenge of inter vivos transfers to decedent’s 

son would have resulted in the transfers being invalidated and the property would 
have reverted to the estate). Likewise, any personal property Rosaline owned at the 

time of her death, e.g., jewelry, gold, artwork or furniture, would have been part of 

her probate estate and distributed to Nina in accordance with the 2004 will. Thus, 

even assuming Nina made all of the transfers alleged in the amended complaint, 

Tina would still have received only $1. Accordingly, based on the facts alleged by 

Tina, there is no genuine issue of material fact that Tina has not sustained any 

recoverable damages as necessary to sustain her IIEI claim, and the trial court did 

not err in granting summary judgment in favor Nina on Tina’s IIEI claim. 

Other Claims Asserted in the General Division Action

Tina does not meaningfully address her claims for unjust enrichment, 

conversion, damages under R.C. 2307.60(A) or constructive trust/accounting (or 

the elements required to prove those claims) in her appellate briefs. She simply 

asserts generally that “actions for unjust enrichment, conversion, constructive trust 

and victim of crime have different elements” than the matters decided in the will 

contest action and that, because she was the nonmoving party on summary 

judgment, the trial court should have inferred, based on the alleged facts, that “there 

was unjust enrichment, conversion, and theft.” 

Unjust enrichment occurs where “a person ‘has and retains money or 

benefits which in justice and equity belong to another.’” Johnson v. Microsoft Corp., 

106 Ohio St.3d 278, 2005-Ohio-4985, 834 N.E.2d 791, ¶ 20, quoting Hummel v. 

Hummel, 133 Ohio St. 520, 528, 14 N.E.2d 923 (1938). To prevail on a claim for 

unjust enrichment, a plaintiff must prove, by a preponderance of the evidence, that 
(1) a benefit was conferred by the plaintiff on the defendant, (2) the defendant had 

knowledge of the benefit and (3) the defendant retained the benefit under 

circumstances in which it was unjust to do so without payment. Johnson at ¶ 20, 

citing Hambleton v. R.G. Barry Corp., 12 Ohio St.3d 179, 183, 465 N.E.2d 1298 

(1984); Figgie v. Figgie, 8th Dist. Cuyahoga No. 109829, 2021-Ohio-1195, ¶ 55. The 

purpose of an unjust enrichment claim is not to compensate the plaintiff for loss or 

damage suffered by the plaintiff, but to compensate the plaintiff for the benefit he 

or she conferred on the defendant. Johnson at ¶ 21; Figgie at ¶ 54.

Conversion is “‘the wrongful control or exercise of dominion over the 

property belonging to another inconsistent with or in denial of the rights of the 

owner.’” Poston ex rel. Poston v. Shelby-Love, 2017-Ohio-6980, 95 N.E.3d 659, ¶ 18 

(8th Dist.), quoting Beavers v. PNC Bank, N.A., 8th Dist. Cuyahoga No. 99773, 

2013-Ohio-5318, ¶ 29. To prevail on a claim for conversion, a plaintiff must prove: 

(1) the plaintiff’s ownership or right to possession of the property at the time of the 

conversion, (2) the defendant’s conversion by a wrongful act or disposition of the 

plaintiff’s property rights and (3) damages. See, e.g., Mathews v. Cooper, 8th Dist. 

Cuyahoga No. 109974, 2021-Ohio-2768, ¶ 46; Figgie v. Figgie, 8th Dist. Cuyahoga 

No. 109834, 2021-Ohio-1812, ¶ 11; Lanzalaco v. Lanzalaco, 2012-Ohio-4053, 976 

N.E.2d 309, ¶ 31 (8th Dist.). If the defendant came into possession of the property 

lawfully, the plaintiff must further establish that (1) the plaintiff demanded the 

return of the property after the defendant exercised dominion or control over the 
property and (2) the defendant refused to deliver the property to the plaintiff. 6750 

BMS, L.L.C. v. Drentlau, 2016-Ohio-1385, 62 N.E.3d 928, ¶ 28 (8th Dist.). 

R.C. 2307.60 “independently authorizes a civil action for damages 

caused by criminal acts unless otherwise prohibited by law.” Jacobson v. Kaforey, 

149 Ohio St.3d 398, 2016-Ohio-8434, 75 N.E.3d 203, ¶ 6, 10 (“R.C. 2307.60(A)(1), 

by its plain and unambiguous terms, creates a statutory cause of action for damages 

resulting from any criminal act.”). R.C. 2307.60(A)(1) states:

Anyone injured in person or property by a criminal act has, and may 

recover full damages in, a civil action unless specifically excepted by 

law, may recover the costs of maintaining the civil action and attorney’s 

fees if authorized by any provision of the Rules of Civil Procedure or 

another section of the Revised Code or under the common law of this 

state, and may recover punitive or exemplary damages if authorized by 

section 2315.21 or another section of the Revised Code.

See also R.C. 2307.61(A) (identifying the damages a “property owner” may recover 

“[i]f a property owner brings a civil action pursuant to [R.C. 2307.60(A)] to recover 

damages from any person * * * who commits a theft offense, as defined in section 

[R.C. 2913.01], involving the owner’s property”). An underlying criminal conviction 

is not required for recovery under R.C. 2307.60(A)(1). Buddenberg v. Weisdack, 

161 Ohio St.3d 160, 2020-Ohio-3832, 161 N.E.3d 603, ¶ 1-2, 11, 14, 22. Tina’s claim 

for damages under R.C. 2307.60(A)(1) was based on Nina’s alleged theft and 

embezzlement of Rosaline’s assets. Amended Complaint ¶ 64 (“Defendant has 

engaged in theft and/or embezzled money and property * * * that was Rosaline’s, 

including bank accounts, jewelry, furs, and rings.”). Ohio’s theft statute, R.C.

2913.02, states in relevant part:
No person, with purpose to deprive the owner of property or services, 

shall knowingly obtain or exert control over either the property or 

services in any of the following ways:

(1) Without the consent of the owner or person authorized to give 

consent;

(2) Beyond the scope of the express or implied consent of the owner or 

person authorized to give consent;

(3) By deception;

(4) By threat;

(5) By intimidation.

R.C. 2913.02(A). Tina does not identify in her amended complaint which particular 

provision(s) she contends applies.17

Tina has not shown that a genuine issue of material fact exists as to

any of these causes of action. As alleged in her amended complaint, Tina’s claims 

for unjust enrichment and conversion are predicated on Tina’s allegations that Nina 

did some wrong to Rosaline or Rosaline’s property. Amended Complaint ¶ 36, 38, 

44, 48, 55, 58, 61, 64. Tina does not allege any facts that show that Tina conferred a 

benefit on Nina or that Nina was unjustly enriched by Tina. Tina does not allege 

that Nina converted any property owned by Tina. Tina’s claim for damages under 

R.C. 2307.60(A)(1) was based on Nina’s alleged theft and embezzlement of 

Rosaline’s assets, not Tina’s. Amended Complaint ¶ 64. Tina has not alleged that 

17 Ohio does not currently have a separate criminal embezzlement statute. But see

R.C. 2913.01(K)(3) (defining “theft offense” to include “[a]n offense under an existing or 

former municipal ordinance or law of this or any other state, or of the United States, 

involving robbery, burglary, breaking and entering, theft, embezzlement, wrongful 

conversion, forgery, counterfeiting, deceit, or fraud”); see also 1974 Committee Comment 

to R.C. 2913.02 (“This section covers a plethora of former offenses of which the gist was 

larceny, embezzlement, conversion, fraud, or false pretense. * * * [C]onversion or 

embezzlement now constitutes theft, since the section defines theft as exerting control (as 

opposed to initially gaining control over property or services) beyond the scope of the 

owner’s consent, and with purpose to deprive the owner of the same.”).
Nina embezzled or stole any property owned by Tina. Tina has not presented any 

evidence from which it could be reasonably concluded that she was the owner of, coowner of, beneficiary of or had any other type of property interest in any of the bank 

accounts or other personal property allegedly converted, diverted or stolen by Nina. 

As Tina describes her claims in her reply brief, “The Common Pleas case seeks 

compensation from [Nina’s] conversion of Rosaline’s assets and outright theft and 

wasting of her mother’s assets.” Tina has not cited any legal authority to support an 

argument that she is entitled to recover on such claims based on similarly alleged 

facts. Compare Thomas v. Delgado, 2022-Ohio-4235, 201 N.E.3d 1021, ¶ 86 (3d 

Dist.) (where the basis of appellant’s fraud claim was predicated on an injury 

suffered by the decedent, trial court properly granted motion for summary judgment 

in favor of appellees because “‘[u]nder law, those claims belong to the estate of [the 

decedent] and may not be asserted by third parties’”), quoting Treadway v. Free 

Pentecostal Pater Ave. Church of God, Inc., 12th Dist. Butler No. CA2007-05-139, 

2008-Ohio-1663, ¶ 27, 30 (appellants lacked standing to bring claims that asserted 

an injury suffered by the decedent, including conversion of the decedent’s assets).

Further, although set forth as a separate count in Tina’s amended 

complaint, the imposition of a constructive trust and a request for an accounting are 

generally considered to be remedies, not independent causes of action. See, e.g., 

Kobal v. Edward Jones Sec., 8th Dist. Cuyahoga No. 109753, 2021-Ohio-1088, ¶ 14; 

Figgie, 2021-Ohio-1195, at ¶ 43; see also Graham v. Lakewood, 2018-Ohio-1850, 

113 N.E.3d 44, ¶ 58 (8th Dist.) (“A constructive trust is a remedy, not a cause of 
action.”); Francisco A. Mateo MD, Inc. v. Proia, 2023-Ohio-3908, 227 N.E.3d 389, 

¶ 55 (7th Dist.) (“In non-partnership contexts, appellate courts have generally 

concluded a claim for an accounting is a remedy rather than an independent cause 

of action.”); Krohn v. Ostafi, 6th Dist. Lucas No. L-19-1002, 2020-Ohio-1536, ¶ 37 

(“An accounting, like a constructive trust, is an equitable remedy, not a cause of 

action[.]”). Tina has not identified any basis on which Nina could be compelled to 

account to her, other than in connection with her role in probate court as executor

of their mother’s estate, which accounting has already occurred and approved by the 

probate court. 

Accordingly, the trial court did not err in granting summary judgment 

in favor of Nina on Tina’s claims for unjust enrichment, conversion, damages under 

R.C. 2307.60(A) and constructive trust/accounting. We overrule Tina’s first 

assignment of error. 

Denial of Right to Remedy and Delaying Justice

In her third assignment of error, Tina contends that the trial court’s 

ruling on summary judgment violated her right to remedy under Article I, Section 

16 of the Ohio Constitution by “destroying a judicially recognized remedy and 

delaying justice.” 

Article I, Section 16 of the Ohio Constitution provides, in relevant 

part:

All courts shall be open, and every person, for an injury done him in his 

land, goods, person, or reputation, shall have remedy by due course of 

law, and shall have justice administered without denial or delay.
Tina asserts that by denying her relief on her IIEI claim and her claim 

for civil damages as a “victim of crime” under R.C. 2307.60,18 she was 

unconstitutionally denied “a meaningful and fair opportunity for redress” following 

“[f]our years of a wild goose chase to get discovery and * * * pursue judicial 

remedies.” As explained above, the trial court properly granted Nina’s motion for 

summary judgment because, based on the evidence presented, there was no genuine 

issue of material fact that Tina could not prove essential elements of her claims 

against Nina. Although Civ.R. 56(F) provided a mechanism by which Tina could 

have sought a continuance to conduct additional discovery if she felt she needed it 

to oppose Nina’s motion for summary judgment, Tina did not seek such relief. Tina 

has not cited any relevant legal authority to support her claim that, under such 

circumstances, the trial court’s decision to grant summary judgment violated Article 

I, Section 16 of the Ohio Constitution. Simply because Tina was unsuccessful in 

demonstrating the existence of a genuine issue of material fact for trial on her 

motion for summary judgment does not mean her rights under the Ohio 

Constitution were violated. Accordingly, we overrule Tina’s third assignment of 

error. 

Judgment affirmed.

It is ordered that appellee recover from appellant the costs herein taxed.

The court finds there were reasonable grounds for this appeal.

18 Tina does not reference her other claims in her third assignment of error.
It is ordered that a special mandate issue out of this court directing the 

Cuyahoga County Court of Common Pleas 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.

_________________________________

EILEEN A. GALLAGHER, PRESIDING JUDGE

EILEEN T. GALLAGHER, J., and

MICHAEL JOHN RYAN, J., CONCUR