[Cite as Alibrando v. Miner, 2021-Ohio-2827.]

COURT OF APPEALS 

LICKING COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

MATTHEW ALIBRANDO, ET AL. : JUDGES: 

 : Hon. Craig R. Baldwin, P.J. 

 Plaintiffs-Appellants : Hon. William B. Hoffman, J. 

 : Hon. Earle E. Wise, Jr., J. 

-vs- : 

 : 

CONNIE MINER : Case No. 2021 CA 0010 

 : 

 Defendant-Appellee : O P I N I O N 

CHARACTER OF PROCEEDING: Appeal from the Court of Common 

Pleas, Probate Division, Case No. 

2019-0068A 

JUDGMENT: Reversed in Part, Vacated in Part, 

 and Remanded 

DATE OF JUDGMENT: August 17, 2021 

APPEARANCES: 

For Plaintiffs-Appellants For Defendant-Appellee 

CHARLES H. BENDIG C. DANIEL HAYES 

4937 West Broad Street 195 East Broad Street 

Columbus, OH 43228 P.O. Box 958 

 Pataskala, OH 43062 
Licking County, Case No. 2021 CA 0010 2 

Wise, Earle, J.

{¶ 1} Plaintiffs-Appellants, Matthew Alibrando and Vincent Alibrando, appeal the 

January 25, 2021 entry of the Court of Common Pleas of Licking County, Ohio, Probate 

Division, granting summary judgment to Defendant-Appellee, Connie Minor. 

FACTS AND PROCEDURAL HISTORY 

{¶ 2} In August 2013, Guito Alibrando executed a last will and testament naming 

his longtime girlfriend, appellee herein, as executrix. In the will, he bequeathed her 

$100,000, with the remainder of his estate going to his two sons, appellants herein. 

Shortly after execution, appellee read the will and was aware of the contents therein. In 

October 2013, appellee was added to Guito's checking account. In August 2015, Guito 

executed a durable power of attorney authorizing appellee to sell any real estate in his 

name and to deposit and/or withdraw funds from any of his bank accounts, including the 

joint checking account. 

{¶ 3} In July 2016, Guito entered a nursing home. In July 2018, appellee sold 

Guito's house and placed the proceeds, over $200,000, into the joint checking account. 

Guito passed away in December 2018. In February 2019, appellee removed the funds 

from the joint checking account and placed them into her personal savings account. 

{¶ 4} On January 28, 2019, appellee, as executrix, filed an application to probate 

Guito's will. On July 11, 2019, appellants filed exceptions to the final account, claiming 

the account failed to include the proceeds from the sale of the house. 

{¶ 5} On August 30, 2019, appellants filed a complaint alleging concealment of 

assets pursuant to R.C. 2109.50. Also on August 30, 2019, appellants filed a motion to 

substitute executrix with themselves. 
Licking County, Case No. 2021 CA 0010 3 

{¶ 6} On October 14, 2019, appellee filed a motion for summary judgment. 

Discovery was still ongoing. On November 18, 2019, appellants filed a memorandum 

contra to appellee's motion, as well as their own motion for partial summary judgment. 

Also on November 18, 2019, appellants filed a motion to amend their complaint to conform 

to the evidence obtained through discovery and to add a claim of a constructive trust. By 

entry filed January 25, 2021, the trial court granted appellee's motion for summary 

judgment and denied appellants' motion for partial summary judgment, and denied 

appellants' motions to substitute the executrix and amend their complaint. 

{¶ 7} Appellants filed an appeal and this matter is now before this court for 

consideration. Assignments of error are as follows: 

I 

{¶ 8} "THE TRIAL COURT ERRED IN FAILING TO FIND THE POA'S 

TRANSFER OF OVER $210,000, PAYABLE SOLELY TO HER PRINCIPAL, INTO A 

JOINT SURVIVORSHIP ACCOUNT WHERE HIS DEATH WAS IMMINENT, AND THE 

FAILURE TO RETURN THOSE FUNDS TO THE DECEDENT'S ESTATE AFTER 

DEATH, WAS A MISAPPROPRIATION OF HER PRINCIPAL'S MONEY IN VIOLATION 

OF HER FIDUCIARY RELATIONSHIP, IN BAD FAITH, CONTRARY TO THE 

PRINCIPAL'S KNOWN ESTATE PLAN, AND CONTRARY TO THE PRINCIPAL'S BEST 

INTEREST AND REASONABLE EXPECTATIONS, REQUIRING SUMMARY 

JUDGMENT IN FAVOR OF APPELLANTS." 

II 

{¶ 9} "THE TRIAL COURT ERRED IN FAILING TO REMOVE CONNIE MINER 

AS THE EXECUTOR OF THE DECEDENT'S ESTATE DUE TO PENDING LITIGATION 

BY THE RESIDUAL BENEFICIARIES OF THE ESTATE AGAINST HER, AND THE 
Licking County, Case No. 2021 CA 0010 4 

NEED FOR THE DECEDENT'S ESTATE TO INVESTIGATE PROBABLE MISCONDUCT 

BY HER IN THE YEARS PRIOR TO HIS DEATH." 

III 

{¶ 10} "THE TRIAL COURT ERRED IN FAILING TO FIND AGAINST CONNIE

MINER FOR CONCEALMENT AND EMBEZZLEMENT OF ESTATE ASSETS 

PURSUANT TO ORC 2109.50, REMOVAL AS EXECUTOR PURSUANT TO ORC 

2109.53 AND JUDGMENT AGAINST HER FOR THE AMOUNTS CONCEALED OR 

EMBEZZLED, WITH THE MANDATORY 10% PENALTY AND REASONABLE 

ATTORNEY'S FEES." 

IV 

{¶ 11} "THE TRIAL COURT ERRED IN FAILING TO GRANT APPELLANTS' 

MOTION TO FILE AN AMENDED COMPLAINT." 

V 

{¶ 12} "THE TRIAL COURT ERRED IN GRANTING APPELLEE'S MOTION FOR

SUMMARY JUDGMENT." 

{¶ 13} We will address the assignments of error out of order for ease of discussion. 

V 

{¶ 14} In their fifth assignment of error, appellants claim the trial court erred in 

granting summary judgment to appellee. We agree. 

{¶ 15} Summary Judgment motions are to be resolved in light of the dictates of 

Civ.R. 56. Said rule was reaffirmed by the Supreme Court of Ohio in State ex rel. 

Zimmerman v. Tompkins, 75 Ohio St.3d 447, 448, 663 N.E.2d 639 (1996): 
Licking County, Case No. 2021 CA 0010 5 

Civ.R. 56(C) provides that before summary judgment may be 

granted, it must be determined that (1) no genuine issue as to any material 

fact remains to be litigated, (2) the moving party is entitled to judgment as 

a matter of law, and (3) it appears from the evidence that reasonable minds 

can come to but one conclusion, and viewing such evidence most strongly 

in favor of the nonmoving party, that conclusion is adverse to the party 

against whom the motion for summary judgment is made. State ex. rel. 

Parsons v. Fleming (1994), 68 Ohio St.3d 509, 511, 628 N.E.2d 1377, 1379, 

citing Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327, 4 O.O3d 

466, 472, 364 N.E.2d 267, 274. 

{¶ 16} As explained by this court in Leech v. Schumaker, 5th Dist. Richland No. 

15CA56, 2015-Ohio-4444, ¶ 13: 

It is well established the party seeking summary judgment bears the 

burden of demonstrating that no issues of material fact exist for trial. 

Celotex Corp. v. Catrett (1986), 477 U.S. 317, 330, 106 S.Ct. 2548, 91 

L.Ed.2d 265 (1986). The standard for granting summary judgment is 

delineated in Dresher v. Burt (1996), 75 Ohio St.3d 280 at 293: " * * * a party 

seeking summary judgment, on the ground that the nonmoving party cannot 

prove its case, bears the initial burden of informing the trial court of the basis 

for the motion, and identifying those portions of the record that demonstrate 

the absence of a genuine issue of material fact on the essential element(s) 

of the nonmoving party's claims. The moving party cannot discharge its 
Licking County, Case No. 2021 CA 0010 6 

initial burden under Civ.R. 56 simply by making a conclusory assertion the 

nonmoving party has no evidence to prove its case. Rather, the moving 

party must be able to specifically point to some evidence of the type listed 

in Civ.R. 56(C) which affirmatively demonstrates the nonmoving party has 

no evidence to support the nonmoving party's claims. If the moving party 

fails to satisfy its initial burden, the motion for summary judgment must be 

denied. However, if the moving party has satisfied its initial burden, the 

nonmoving party then has a reciprocal burden outlined in Civ.R. 56(E) to 

set forth specific facts showing there is a genuine issue for trial and, if the 

nonmovant does not so respond, summary judgment, if appropriate, shall 

be entered against the nonmoving party." The record on summary

judgment must be viewed in the light most favorable to the opposing party. 

Williams v. First United Church of Christ (1974), 37 Ohio St.2d 150. 

{¶ 17} As an appellate court reviewing summary judgment motions, we must stand 

in the shoes of the trial court and review summary judgments on the same standard and 

evidence as the trial court. Smiddy v. The Wedding Party, Inc., 30 Ohio St.3d 35, 506 

N.E.2d 212 (1987). 

{¶ 18} The August 2015 power of attorney granted to appellee authorized her to 

sell any of Guito's real or personal property, and to deposit or withdraw funds from any 

banking institution including the joint checking account. The document states the 

following at ¶ 19: 
Licking County, Case No. 2021 CA 0010 7 

In accordance with O.R.C. 1337.34, the following duties of the agent 

are mandatory: All agents must act (i) in good faith; (ii) within the scope of 

authority granted; (iii) in accordance with the principal's reasonable 

expectations, if known, or in the principal's best interest, and the agent must 

(iv) attempt to preserve the principal's estate plan, to the extent actually 

known to the agent, if preserving the plan is consistent with the principal's 

best interests based on all relevant factors. 

{¶ 19} As explained by our colleagues from the Third District in Temple v. Temple, 

3d Dist. Marion No. 9-14-26, 2015-Ohio-2311, ¶ 29: 

" * * * [A] power of attorney is a written instrument authorizing an 

agent to perform specific acts on behalf of the principal." Testa v. Roberts,

44 Ohio App.3d 161, 164, 542 N.E.2d 654 (1988). The holder of a power 

of attorney has a fiduciary relationship with the principal. This fiduciary 

relationship imposes a duty of loyalty to the principal. In re Scott, 111 Ohio 

App.3d 273, 276, 675 N.E.2d 1350 (1996). Thus, an agent "may not make 

gratuitous transfers of the principal's assets unless the power of attorney 

from which the authority is derived expressly and unambiguously grants the 

authority to do so." MacEwen v. Jordan, 1st Dist. No. C-020431, 2003-

Ohio-1547, 2003 WL 1571741, at ¶ 12. In re Meloni, 11th Dist. No. 2003-

T-0096, 2004-Ohio-7224, 2004 WL 3090190, at ¶ 34. The person who 

holds the power of attorney bears the burden of proof on the issue of the 

fairness of the transaction. Testa at paragraph five of syllabus. 
Licking County, Case No. 2021 CA 0010 8 

{¶ 20} Pursuant to Guito's will executed in August 2013, appellee was to receive 

$100,000 from the estate and the remainder was to go to appellants. After appellee sold 

Guito's house in July 2018, she placed the proceeds (over $200,000) into the joint 

checking account to pay Guito's bills. After Guito passed away, appellee transferred the 

remaining money in the joint checking account (over $200,000) to her personal savings 

account. In their motion for partial summary judgment, appellants argued this transaction 

constituted self-dealing by a fiduciary in violation of R.C. Chapter 1337, concealment of 

assets, embezzlement, and theft. 

{¶ 21} In its January 25, 2021 entry granting summary judgment to appellee, the 

trial court thoroughly analyzed Guito's capacity to execute his will and the power of 

attorney, and found the undisputed facts show he had testamentary and mental capacity 

at the time he executed the documents. The trial court went on to conclude the power of 

attorney gave appellee the ability to sell the home and place the proceeds in the joint 

checking account, but stopped short of analyzing whether appellee, as a fiduciary, 

properly transferred the funds from the joint checking account to her individual account 

for her sole benefit as opposed to the beneficiaries under the will. Did appellee's actions 

constitute good faith? Did she act in accordance with Guito's reasonable expectations? 

Did she attempt to preserve Guito's estate plan which was to bequeath her $100,000 with 

the remainder to appellants? Under our de novo review, we find genuine issues of 

material fact to exist on these questions. 

{¶ 22} Upon review, we find the trial court erred in granting summary judgment to 

appellee. 

{¶ 23} Assignment of Error V is granted. 
Licking County, Case No. 2021 CA 0010 9 

I, III 

{¶ 24} In their first assignment of error, appellants claim the trial court erred in 

denying their motion for summary judgment. 

{¶ 25} In their third assignment of error, appellants claim the trial court erred in 

failing to find against appellee for concealment and embezzlement of estate asset. 

{¶ 26} Given our finding of genuine issues of material fact to exist, we deny these 

assignments of error. 

{¶ 27} Assignments of Error I and III are denied. 

II 

{¶ 28} In their second assignment of error, appellants claim the trial court erred in 

failing to remove appellee as the executrix of Guito's estate due to their pending claims 

against her. Based upon our finding below, we find this assignment to be premature. 

{¶ 29} As explained by this court in Meek v. Geneva, 5th Dist. Tuscarawas No. 

2017 AP 01 0001, 2017-Ohio-7975, ¶ 43: 

"The fiduciary duties of an executor are primarily to collect the estate 

assets, pay debts, and make distributions." In re Estate of Faldon, 6th Dist. 

Erie No. E-15-071, 2016-Ohio-7337, 2016 WL 6069077, ¶ 26 quoting Estate 

of Barry, 11th Dist. Geauga No. 2013-G-3147, 2015-Ohio-1203, 2015 WL 

1432344, ¶ 17. "The executor also owes various duties to the beneficiaries 

of the estate, duties involving keeping proper accounts, giving timely notice, 

preserving assets, avoiding the commingling of property, and basic duties 

of trust and loyalty." Id. The executor "serves as a representative of the 

entire estate and owes a duty to act in a manner which protects the 
Licking County, Case No. 2021 CA 0010 10 

beneficiaries' interests." Id., citing Elam v. Hyatt Legal Serv., 44 Ohio St.3d 

175, 176, 541 N.E.2d 616 (1989). 

 

{¶ 30} Appellants made numerous claims against appellee including concealment 

and embezzlement of estate assets under R.C. 2109.50, and questioned her actions as 

a fiduciary pursuant to the standard set forth in R.C. 1337.34 and included in the power 

of attorney document. 

{¶ 31} R.C. 2113.18 governs removal of executor or administrator in a probate 

case. Subsection (A) states the following: "The probate court may remove any executor 

or administrator if there are unsettled claims existing between the executor or 

administrator and the estate that the court thinks may be the subject of controversy or 

litigation between the executor or administrator and the estate or persons interested in 

the estate." 

{¶ 32} Per the language in the statute, the removal of an executor lies in a trial 

court's sound discretion. In its entry filed January 25, 2021, the trial court denied 

appellants' motion to remove the executrix without comment as it had granted appellee's 

motion for summary judgment. Given the reinstatement of appellants' colorable claims 

and the existence of genuine issues of material fact as to whether appellee has violated 

her fiduciary duties and/or engaged in self-dealing, we find the trial court should now 

consider the motion. 

{¶ 33} Upon review, we hereby vacate the ruling on the denial to remove appellee 

as executrix and remand the issue for reconsideration and decision. 

{¶ 34} Assignment of Error II is therefore premature. 
Licking County, Case No. 2021 CA 0010 11 

IV 

{¶ 35} In their fourth assignment of error, appellants claim the trial court erred in 

denying their motion to amend their complaint. We agree. 

{¶ 36} Twenty-eight days after a responsive pleading has been made, Civ.R. 15(A) 

allows for amendment of pleadings by leave of court or by written consent of the other 

party. Civ.R. 15(A) specifically states: "The court shall freely give leave when justice so 

requires." In Hoover v. Sumlin, 12 Ohio St.3d 1, 6, 465 N.E.2d 377 (1984), the Supreme 

Court of Ohio stated, "the language of Civ.R. 15(A) favors a liberal amendment policy and 

a motion for leave to amend should be granted absent a finding of bad faith, undue delay 

or undue prejudice to the opposing party." "The spirit of the Civil Rules is the resolution 

of cases upon their merits, not upon pleading deficiencies. Civ.R. 1(B) requires that the 

Civil Rules shall be applied 'to effect just results.' Pleadings are simply an end to that 

objective." Peterson v. Teodosio, 34 Ohio St.2d 161, 175, 297 N.E.2d 113 (1973). 

"Although the grant or denial of leave to amend a pleading is discretionary, where it is 

possible that the plaintiff, by an amended complaint, may set forth a claim upon which 

relief can be granted, and it is tendered timely and in good faith and no reason is apparent 

or disclosed for denying leave, the denial of leave to file such amended complaint is an 

abuse of discretion." Id.

{¶ 37} The issues pertaining to appellee's actions regarding the joint checking 

account were raised in appellants' motion for partial summary judgment filed November 

18, 2019. On same date, appellants sought to amend their complaint to conform to the 

evidence obtained through discovery and to add a claim of a constructive trust, narrowing 

their focus from Guito's testamentary and mental capacity to appellee's fiduciary duties 

under R.C. Chapter 1337 and her transfer of the funds out of the joint checking account. 
Licking County, Case No. 2021 CA 0010 12 

The motion to amend was made less than three months after the initial complaint was 

filed. Discovery was still ongoing as late as December 20, 2019. The trial court did not 

issue a decision until over a year later on January 25, 2021. We do not find any evidence 

of bad faith or undue delay. We do not find any undue prejudice to appellee in permitting 

appellants to amend their complaint to conform to discovery. 

{¶ 38} Upon review, we find the trial court erred in denying appellants' motion to 

amend their complaint. 

{¶ 39} Assignment of Error IV is granted. 

{¶ 40} The judgment of the Court of Common Pleas of Licking County, Ohio, 

Probate Division, is hereby reversed in part, vacated in part, and the matter is remanded 

to said court for further proceedings consistent with this opinion. 

By Wise, Earle, J. 

Baldwin, P.J. and 

Hoffman, J. concur. 

EEW/db
[Cite as Alibrando v. Miner, 2021-Ohio-2827.]