[Cite as In re Disinterment of Glass , 2023
- Ohio
- 3509.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY IN THE MATTER OF THE DISINTERMENT OF MARION J. GLASS, DECEASED IRENE J. GLASS, DECEASED : : : : : : : : : : C.A. Nos. 29700; 29707 Trial Court Case No s . 2020 MSC 00382; 2020 MSC 00383 (Appeal from Common Pleas Court

Probate Division)

. . . . . . . . . . . O P I N I O N Rendered on September 29, 2023

. . . . . . . . . . . RICHARD A. TALDA and JOSHUA R. LOUNSBURY , Attorney s for Appellant , Kathleen Glass AARON M. HERZIG , JULIA B. MEISTER, CHRISTOPHER M. WOLCOTT , ROBERT R. DUNLEVEY and GLEN R. MCMURRY , Attorney s for Appellee s, Roger Glass Estate and Carol Pollock

. . . . . . . . . . . . . WELBAUM, P.J. {¶ 1} In th ese consolidated cases, Kathleen Glass (“Kathleen”) appeals from probate court judgment s granting application s to disinter her parents, Marion and Irene- 2

-

Glass. 1 The appellees are Carol Po llock (Kathleen’s sister) and Larry Mullins , Executor of the Estate of Roger Glass (collectively, “ Applicants”)

. Roger Glass , Kathleen’s brother and the original applicant for disinterment, died during the co urse of th e litigation , and the court substituted Mullins as a party

. {¶ 2} According to Kathleen, the probate court erred in four ways: (1) by admitting evidence about settlement discussions ; (2) by failing to find that Carol and Roger had waived their righ t to seek disinterment; (3) in granting t he application s for disinterment; and (4) by denying Kathleen’s motion to strike the A pplicants’ closing brief without holding an evidentiary hearing. After considering the record, which included a four

- day bench trial and many exhibits , we find no error on the court’s part

. First, t he court’s admission of limited e vidence about settlement discussions did not violate Evid.R. 408 , which generally prohibits admission of such evidence . However, evidence showing bias or motive is excluded from the rule. Here, the factors used to assess disinterment applications require court s to consider the parties’ motive s and conduct. {¶ 3} Furthermore, Kathleen waived objections to admission of evidence under Evid.R. 408. Specifically, while Kathleen did challenge admission of settlement matters at various times during the trial, she had taken the opposite position before trial in
respon se to Applicants’ pretrial liminal motion. She also had no issue w ith admitting such evidence when it was to her advantage, as in a post
- trial motion she filed . Kathleen only opposed admission when it was not to her benefit

.

1 An application was filed for each parent and the cases were consolidated. Also, because several family m embers have the same last name , we will refer to the parties by their first names t o avoid confusion

.- 3

- {¶ 4} The probate court also correctly found th at Applicants had not waive d their right to seek disi nterment, and the court did not abuse its discretion in granting the application s for disinterment

. Seven factors are used to evaluate applications for disinterment. The court found that two factors related to the degree of relationship to the decedent s were neutral (because the parties were all siblings). The court further found that the remaining five factors weighed either in favor of disinterment or heavily in its favor. The court’s decision was supported by competent, credible evidence. {¶ 5} Finally, the court did not abuse its discretion in denying Kathleen’s motion to strike the Applicants’ closing brief and in denying her alternative motion to reopen the proceedings and allow admission of new evidence. Kathleen alleged that Applicants had engaged in frivolous conduct by making false statements in their closing brief

. She attempted to establish this by presenting evidence of attempts to compromise that had occurred during mediation and at one other point before trial . However , the court

c orrectly noted that Kathleen had attempted to conceal such evidence during trial but then sought to use it to her benefit after trial

. The court also correctly found that counsel ha ve great lat itude in closing argument, and that Applicant s ’ closing brief did, in fact, discuss the evidence as it existed in the trial record. {¶ 6} Finally, the court did not abuse its discretion in denying the motion to reopen. The court actually did consider the evidence that Kathleen wished to submit but found it was duplicati ve and unnecessary. Accordingly, all of Kathleen’s assignments of error will be overruled, and the judgment s of the probate court will be affirmed.- 4

- I. Facts and Course of Proceedings {¶ 7} On December 14, 2020, Roger Glass filed two applications for an order to disinter remains. One application ( in Montgomery P.C. No. 2020

- MSC

- 00382) concerned the remains of Roger’ s father, Marion J. Glass, who had died in March 2006. The other ( in Montgom ery P.C. No. 2020

- MSC

- 00383) concerned the remains of Roger ’ s mother, Irene J. G lass, who had died in January 2000. An attachment to the applications listed the next of kin as Roger, Carol (an Illinois resident) , and Kathleen (a Florida resident), all of whom were siblings. Carol c onsented to the applications, but Kathleen objected. On April 22, 2021, the probate court consolidated the two cases. {¶ 8} After that point, Cal vary Cemetery Association of Dayton, Ohio (“Calvary”) entered the case as a non

- party for purposes of filing motions t o quash a subpoena and

a notice to take Civ.R. 30(B)(5) depositions of representatives of Calvary. Calvary was the cemetery in which Marion and Irene had been interred. After the court denied the motions to quash, Calvary appealed. Upon c onsideration, we found in early January 2022 that the court had not abuse d its discretion in denying the motion to quash. See In re Disinterment of Glass , 2d Dist. Montgomery No. 29160, 2022

- Ohio

- 28, ¶ 66. {¶ 9} While th at part of the action was on appeal, the rest of the case proc eeded in the probate court. For example, on July 27, 2021, the court filed an entry terminating mediation and noting that the case had not been settled. In September 2021, the court set trial for February 2022, and on October 27, 2021, the court granted a motion to realign Carol as an applicant . The court then ordered that Carol be designated a s a co - applicant on the initial application s for disintermen t.- 5

- {¶ 10} Subsequently, the court vacated the February 2022 trial date and reset the trial for August 9, 2022. The trial took place as scheduled, from August 9 through August 12, 2022. On August 15, 2022, the court filed an entry setting dates for filing post

- trial briefs ; t he order allowed each party to file a brief within 14 days after written transcripts were made available. In addition, parties could file response briefs within 10 days after service of the post

- trial brief. On August 26, 2022, the court filed an agreed entry which

e xtend ed the briefing schedule . The parties were allowed until October 28, 2022 , to file briefs, and until November 18, 2022, to file response briefs. The court then substituted Mullins as a party because Roger had died on Aug ust 24, 2022. {¶ 11} Both sides filed c losing brief s on October 28, 2022. At Kathleen’s request, the court granted a further extension until December 16, 2022 , to file response briefs. Subsequently, on December 13, 2022, Kathleen filed a motion to strike Appl icant s ’ closing brief or , alternatively, to reopen the evidence. Both sides then timely filed their response briefs. After receiving an extension of time, A pplicants filed their response to the motion to strike on January 10, 2023, and a corrected respon se the following day. {¶ 12} On January 17, 2023, the probate court filed a decision approving the application s for disinterment. The same day, the court denied the motion to strike

. Kathleen then filed a notice of appeal from both decisions.

II. Alleged Error in Admitting Evidence {¶ 13} Kathleen’s first assignment of error states that: The Court Erred in Admitting Evidence Concerning Settlement- 6

- Negotiations

. {¶ 14} According to Kathleen , the probate court erred in admitting and considering evidence of settlement negotiations . In its decision approvi ng the application s for disinter ment, the court mentioned that the attorneys for Roger and Kathleen had communicated on October 29, 2020 (before litigation ensued). Decision, Order and Entry Approving Application for Disinterment (Jan. 17, 2023) (“Disinterment Decision”), p.
5

- 6. In discussing one of the factors that is weighed in considering whether to allow disintermen t (conduct of the party seeking to prevent it), the court found Kathleen’s conduct “nothing short of obstructive, heartless and damaging.” Id . at p. 11. While discussing this point, the court referenced Kathleen’s testimony in court in which “she finally admitted she may agree to sign the waiver for disinterment ” under certain conditions. Id

. at p. 12. After outlining these “conditions,” the court stated, “Had Kathleen been sincere and had she timely made this demand in October or November
20 2 0 when ask ed by Roger and counsel, the matter would have been resolved. Kathleen’s delay and insincerity in all of her conduct forced Roger to continue design and construction without her participation.” (Emphasis sic.) Id

. {¶ 15} Kathleen contends that the court’s reliance on evidence about settlement (or lack of settlement) violated Evid.R. 408. This rule provides that;

Evidence of (1) furnishing or offering or promising to furnish, or (2) accepting or offering or promising to a ccept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount, is not admissible to prove liability for or invalidity- 7

- of the claim or its amount. Evidence of conduct or statements ma de in compromise negotiations is likewise not admissible. This rule does not require the exclusion of any evidence otherwise discoverable merely because it is presented in the course of compromise negotiations. This rule also does not require exclusion w hen the evidence is offered for another purpose, such as proving bias or prejudice of a witness, negativing a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution. {¶ 16} The exceptions to admitting evidence about se ttlement negotiations are not inclusive. “For example, this court has sustained a trial court's admission of settlement discussions offered to demonstrate the defendants' motives.” Hocker v. Hocker , 171 Ohio App.3d 279, 2007

- Ohio

- 1671, 870 N.E.2d 736, ¶ 32 (2d Dist.), citing Schafer v. RMS Realty , 138 Ohio App.3d 244, 2 95

- 296 , 741 N.E.2d 155 (2d Dist.2000)

. See also Hignite v. Trout , 2d Dist. Greene No. 19 88

- CA

- 5, 1989 WL 43035, *14 ( Apr. 2 8, 1989) (letter about settlement negotiations was properly admit ted because its purpose was to show board of directors bore no malice in firing the plaintiff). {¶ 17} Furthermore, “[w]here a statement is not made in the context of an offer of compromise, * * * i t is not granted the protection of the exclusionary rule contai ned in Evid.R. 408.” USCA/USA, Inc. v. High Tech Packaging, Inc. , 6th Dist. Wood No. WD

05

- 088, 2006

- Ohio

- 6195, ¶ 34 . Evid.R. 408 “only bars the admission of evidence when the evidence is offered to show ‘that because a settlement offer was made, the off eror must be liable, because people don’t offer to pay for things for which they are not liable.’ ”- 8

-

Boyle v. Daimler Chrysler Corp ., 2 d Dist. Clark No. 2001

- CA

- 81, 2002

- Ohio

- 4199, ¶ 95 , quoting In re Donahoe , 180 B.R. 491 (Bankr . N.D. Ohio 1995). “In other words, Evid.R. 408 does not bar information from settlement negotiations when it is offered for another purpose and not to prove liability against one of the parties to the negotiations. ” USCA/USA, Inc

. at ¶ 34

. {¶ 18} “Decisions in volving the admissibility of evidence are reviewed under an abuse

- of

- discretion standard of review.” Estate of Johnson v. Randall Smith, Inc. , 135 Ohio St.3d 440, 2013

- Ohio

- 1507, 989 N.E.2d 35, ¶ 22. An abuse of discretion “ ‘ implies that the court's att itude is unreasonable, arbitrary or unconscionable. ’ ” (Citations omitted.) Blakemore v. Blakemore , 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). However, “ most instances of abuse of discretion will result in decisions that are simply unreasonable, rat her than decisions that are unconscionable or arbitrary. ” AAAA Ents., Inc. v. River Place Community Urban Redevelopment Corp ., 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990). Decisions are unreasonable if they are not supported by a sound reasoning proces s. Id . The Supreme Court of Ohio has held it “ axiomatic ” that “ ‘ [n]o
court
- not a trial court, not an appellate court, nor even a supreme court

- has the authority, within its discretion, to commit an error of law. ’ ” Johnson v. Abdullah , 166 Ohio St. 3d 427, 2021

- Ohio

- 3304, 187 N.E.3d 463, ¶ 38, quoting State v. Boles , 187 Ohio App.3d 345, 2010

- Ohio

- 278, 932 N.E.2d 345, ¶ 26 (2d Dist.). {¶ 19} After reviewing the record , we find no abuse of discretion by the probate
court. As background, we note the follow ing matters. At trial, the court hea rd testimony from the following people: Ricky Meade, Calvary’s director ; Neil Fogarty, the president of- 9

-

Dodds Memorials (“Dodds”) ; Roger ; Carol ; and Kathleen

. {¶ 20} According to the testimony , Marion and Irene Glass were prominent members of the local community. They established Marion’s Pizza in 1965 and , by 2006, the business had increase d from two locations to seven. They accumulated wealth during their lifetimes and traveled quite a bit around the world. Transc ript of Pro ceedings (Disinterment Trial) (“Tr.” ), 2 55

- 256. {¶ 21} During their lives, Marion and Irene made generous gifts to their parish church, which included providing cash prizes for parish festivals, re

- carpeting the church, replacing the organ, and donat ing $50,000. Id . at 250

- 251. After Irene’s death, Marion funded stained

- glass window s at St. Albert the Great church and at their Catholic church in Florida. Both windows bore Irene’s name. In addition, Marion and Irene donated a reception area and at least two private rooms at the Hospice in Dayton, Ohio . These

areas bore their names. Id. at 258

- 259

. Marion also donated $500,000 to the Archdiocese of Cincinnati, for which he received recognition. Id . at 595. {¶ 22} Irene was described as an elegant, well

- dressed woman who drove a Merce des automobile and lived in beautiful homes , including one in Dayton and an ocean front condo in Florida . She also frequently w ore jewelry. Id . at 254 and 256 . Marion and Irene belon ged to country clubs in Dayton and Florida and gave huge dinner dances at their country club. Id. at 255. Both parents’ funerals were opulent, and after each funeral , a reception was held for hundreds of people at the Dayton County Club. Id . at 261. {¶ 23} Bef ore deciding on Calvary Cemetery , Marion and Irene looked at other- 10

-

cemeteries . However, they chose Calvary because they were Catholic. Tr. at 361

- 362. C alvary was founded in 1872 as a Catholic not

- for

- profit association. The association is owned and is operated independently of the Archdiocese of Cincinnati. Id . at 52. From a religious aspect, the association recognizes the canons of the Catholic Church. Id . at 54. Calvary conducts disinterments about once a year, most of the time for relocation within the cemetery. Id . at 152

. {¶ 24} In 1979, Marion and Irene purchased eight in

- ground burial plots in Section 36 of Calvary C emetery. Irene objected because she did not want to be buried. However, a t th e time, Calvary did not have a public or community mausoleum available ; this option did not become available until 1995. As of December 14, 1979, Marion, Irene, and Roger all had the right to be interred in one of four burial plots in the southeast corner of lot 117 of secti on 36. Other lots in that section were available for Kathleen and her husband, John McKay , and for Carol and her husband, James Pollock. Id . at 55, 58

- 59 , 61, 362 , 525, 532, and 630

. {¶ 25} At a later point, Marion and Irene trans ferred their burial rights i n the four lots to Kathleen and arranged for a private estate mausoleum , which was a four

- crypt unit. This was a stand

- alone private mausoleum , and they acquired the rights for the ground in December 1988

. Id . at 62 , 64 , and 123

- 124

. Carol and John had also previously transferred their parcels to Kathleen. Id . at 60

- 63 and 541

. Thus, including K athlee n’s initial two units, Kathleen and John then had eight in

- ground burial units avail able to them. Id

. at 64. {¶ 26} Calvary's executive director, Ricky Me ade, was hired by Calvary in 1990 as- 11

-

a superintendent ; his title had changed to executive director in 2014. Tr. at 51. While private mausoleums and estate monuments are typically located on prominent corners on frontage lots, Meade’ s predecessors at Calv ary used a military format, with everything in straight lines. Because private mausoleums and estate monuments would have disrupt ed the flow of modern maintenance, Meade’s predecessors had selected a location for these structures in the far reaches of the back corner of the cemetery

. That location
was not attractive ; i t was bordered by a chain

- link fence and barbed wire , as well as by power lines

. When the Glasses purchased the land in 1988, there was no other choice of location for private mausoleums. Id. at 67, 69 , 130 , and 633

. {¶ 27} T he Glasses’ private mausoleum had four spaces and was about five to six feet wide and seven to eight feet deep. It was configured to have a concrete inner
str ucture, which provided upper and lower levels, allowing for two caskets up and two down. Id

. at 127

- 128. At this time, Kathleen still owned the eight in

- ground burial plots. Id . at 66 and 632

- 633. {¶ 28} In 1995, Calvary began constructing a public mausoleum c alled Stations of the Cross (“So C”)

. Id

. at 67. The restriction about where mausoleum s could be placed

w as dissolved about two years after S o C was constructed. Id . at 134. As Calvary was constructing the So C, it reached out to the two families, including the Glasses, who had private mausoleums in the unattractive area and gave them an opportunity to resettle their existing buildings in another location in the cemetery. Meade’s understanding was that Irene and Marion were more interested in moving to the community mausoleum versus relocating the private mausoleum. Id . at 71. However, the section that Roger- 12

-

obtained in 2020 for the new private mausoleum had not been opened yet and was not available. Id

. at 72

. {¶ 29} Marion and Irene exchanged their private mausoleu m , and four spaces in the So C mausoleum were conveyed to them on May 5, 1997 . At that time , Roger, Carol, and Kathleen were the listed heirs for the SoC spaces

. Tr. at 78

- 80 and Ex s . 3 and 5. Irene died in 2000 and Marion died in 2006. They were interred in two of the spaces in the S o C mausoleum, and two contiguous spaces remained vacant. Tr. at 82 and 133

- 134. Under Calvary's bylaws and under the Ohio Revised Code, cemetery spaces pass
upon a n acquiring owner's death on a “ first come, first serve basis. ” Where there is no designation, the next of kin has first rights to whatever space is available. Id . at 77

- 78. Thus, while any one of the three siblings could have used the SoC spaces, there was room for only two siblings

. {¶ 30} After starting chemotherapy for a blood ( cancer ) disorder in June 2020 , Roger began thinking about being buried with his father and mother. Id . at 262 and 320

. Roger was a ware of the two available SoC spaces , but he thought the SoC was very impersonal. He also wanted to honor his parents, who had been very honorable people and had been very respected and well

- known in the community. Id . at 263

- 264. Roger assumed his sister, Carol, was going to be buried with her f amily in Chicago, as she did not live in Dayton. He also assumed that his other sister, Kathleen, would be buried with her family, since she had three children. Additionally, Kathleen lived in Florida and Michigan , not in Ohio

. Id . at 265

- 266. {¶ 31} Roger went by himself to Calvary to find out if space was available or if he- 13

-

was allowed to put a mausoleum anywhere. He did not talk to either sister before going. A fter Calvary indicated that space existed, Roger was told that they had to get permissio n from Roger’s siblings. Meade explained Ohio legal requirements for disinterment to Roger, and Roger did not appear to have had any prior knowledge of them. Id . at 76. Roger was unaware of th e permission requirement but did not anticipate any problems. Id . at 267

- 268

. As noted, the location for the new mausoleum had not been available when Marion and Irene changed from their private mausoleum. Id . at 72. {¶ 32} Roger and Carol talked frequently, and he told Carol of his desire, given his condition, to bui ld a mausoleum for his parents. At that point, Carol said she thought she would like to be part of it

. Consequently, w hile t he original design was for three spaces, Roger enlarged it to eight spaces because he had nieces, nephews, and another sister. Tr

. at 270

- 271. Roger talked to Carol about this before talking to Kathleen because he and Kathleen d id not communicate often, i.e., they spoke only once a year at board meetings. In contrast, Roger usually talked to Carol about once a week. Id . at 272. The evidence at trial indicated that Roger and Carol had a close relationship, but they did
not have the same relationship with Kathleen. {¶ 33} The design and build wor k for the new Glass mausoleum (“ GM ” ) was coordinated through Dodds, which work ed directly with Rock of Ages, a corporation located in Vermont. Dodds typically did the artwork, and the manufacturer did the actual fabrication of granite. Id

. at 84 and 171

- 172. In early August 2020, the de sign for the GM was in its very initial concept. Id . at 175

- 176. At that point, Dodds and Roger were discussing birth and death dates to go with names on four statues, which were to be- 14

-

located at the front of the building. The names at that time were Ma rion, Irene, Roger, and Carol. Id

. at 176

- 177. However, nothing prevented the design from being changed. The design was not final , and Roger had not signed a contract with Dodds. Id . at 178 and 181. {¶ 34} After finding out that he needed Kathleen’s conse nt, Roger contacted her by email on October 20, 2020. At that time, they were developing the GM concept , but the plans could have been modified

. Id . at 284

- 285 and 293

- 294 , and Ex. 38

. In the email, Roger explained what he wanted to do with the GM and t hat he needed Kathleen’s and Carol’s consent to move their parents . He further said he had contacted Carol and she had no objection, and that his attorney (Bob Dunlevey) would be sending forms to both sisters to sign. Roger asked Kathleen to email him concerning whether the form should be sent to her Michigan or Florida address and also said to call or email if she had questions. Id

. at Ex. 38. Kathleen did not respond to the email. Tr. at 287 and 650

. {¶ 35} B efore sending th is email to Kathleen, Roger had sent it to Carol for her review. Id

. at 593

- 594 and Ex. 55. On October 21, 2020, Carol called Kathleen and left a voice mail , discussing the fact that the mausoleum was their mother’s wish and that she ( Car ol ) was going to be involved. Carol’s intent was to talk to Kathleen about joining her and Roger in the family crypt that Roger was planning to construct. Kathleen did not respond to this call. Tr. at 529

- 530 and 579

. Instead of responding to her sibli ngs, Kathleen called her business attorney, Sam Warwar . Warwar then asked Dunlevey to have Roger provide information about plans and specifications. Id . at 651

- 652. {¶ 36} On October 29, 2020, Dunlevey emailed Warwar and indicated that Roger- 15

-

would be sending tentative drawings to Kathleen. In addition, Dunlevey stressed that “time was of the essence.” Exh i bits(s) Respondent Trial Exhibits (Part 1 of 2), filed Dec. 21, 2022, Bates Stamp KGlass

- 000002. The same day, R oger emailed a sketch of the proposed maus oleum to Kathleen and to Warwar. Tr. at 295, 308

- 309, 330

- 331 , and 652 , and Ex s . 39 and 56. In the email to Warwar, Roger noted that he and Carol had tried to contact Kathleen by phone and email , but she refused to return their calls or emails. Ex. 39, p. 2. Roger also stressed the personal urgency of his request. Id

. Kathleen did not respo nd to the email. Tr. at 308. R esponding on October 30, 2020, Warwar congratulated Roger on the mausoleum design, stating that “[i]t is a classic, handsome structure.” Ex. 39 at p. 1. Warwar further stated that while Kathleen had seen the drawing and ha d given the matter serious consideration , “[u]nfortunately, Kathi cannot consent to your request.” Id

. No specific reasons were given. Evidence at trial suggested that Kathleen’s refusal may have been motivated by business disagreements and sibling anim osity . Tr. at 622

- 623. {¶ 37} Dunlevey responded to Warwar on the same day, stating that “Roger does not understand the basis on which Kathi has made this decision and is most interested in knowing such.” See Tr. at 356

- 359 and Ex E, p. 1. Dunlevey further s aid that if Kathleen needed more information about the plans and specification s , the information could be provided when it was developed. Dunlevey s tated that the information was not in Roger’s possession at that time and stressed that “Kathi is not being asked to defray the expense of the family mausoleum. If she wishes to have a crypt within the

m ausoleum , Roger is prepared to accommodate that under certain terms and conditions.”- 16

-

Id

. The record does not contain any response to this email. {¶ 38} On November 3, 2020, Roger wrote another email to Kathleen and copied both Warwar and Dunlevey. Roger attached a letter to the email. Tr. at 308

- 309 , 499, and 500

- 501, and Ex. 57

. In the letter, Roger explained his reasons for the disinterment request, including that his parents had reluctantly purchased space in the Calvary mausoleum (which Carol and their cousin could co rro borate) , his chemo treatments for a blood disorder , and the fact that, because he had no children, “it would be wonderful to
constr uct a free

- standing mausoleum near by [sic] that would be a fitting tribute to our family so that I cou ld be interned [sic] with mom and dad.” Ex. 57, p. 2. Roger further stated: Now, I am at a loss as to why you would refuse my request to have ou r pare nts reinterned [sic] in a mausoleum with me. You no longer live in Dayton and you at least have children who you can be buried with, so why would you care? Or, if you wish, I can add a space for you to be interned [sic] with me and mom and dad if you pre fer. Ex. 57 at p. 2. {¶ 39} Again, Roger indicated that Kathleen could contact him if she had any questions. Id

. She did not do so until November 19, 2020, when she wrote a short email, stating she was sorry about Roger’s chemotherapy and that her parents’ “wish to be entombed in the prevailing mausoleum was truly their last dying wish.” Tr. at 501

- 502 and 671

- 672, and Ex. 43 , p. 2

. Kathleen did not mention Roger’s offer to provide her with space of her own. Roger did not interpret this response as anything other than- 17

-

an absolute “no.” Tr. at 299. On November 25, 2020, Roger responded to Kathleen’s email, disputing that being bur ied in the public mausoleum was Irene’s dying wish, because Irene had died of a sudden heart attack. Id . at 324

- 3 26 and Ex. J. {¶ 40} In the meantime, o n November 4, 2020, Roger had purchased the ground (easement rights) for the GM at a cost of $278,775. Roger paid the entire purchase price himself. Tr. at 81

- 82 and 296

- 297 , and Ex s

. 11 , 41, and 42 . The vacant spaces in the So C were not sold back or exchanged, and no credit was applied to Roger's purchase of the land; instead, Calvary’s director, Meade, belie ved a court would provide direction about what would occur with the remaining spaces. Those two spaces in the public mausoleum were available to any of the three Glass children, should they decide to be entombed there at no additional cost for the entombm ents. Absent an agreement among the children, it would be on a first come, first serve d basis. Tr. at 83 and 160

- 161. {¶ 41} Kathleen wrote another email to Roger on December 1, 2020, stating that their mother had been happy with the SoC space and that the ir parents had liked to donate anonymously. She suggested that Roger donate money to non

- profit organizations rather than build an expensive mausoleum. Id . at 311 and 501 , and Ex. 59

. {¶ 42} On December 3, 2020, Roger wrote an other email to Kathleen, asking what it would take to resolve the issue, “$5,000, 10,000, or what?” Roger asked for a figure, but Kathleen did not reply. According to Roger, he sent this because Ka thleen was “known to like money ” and he was kind of desperate, so he was making a last

- ditch effort. Tr. at 304

- 305 and 479

- 480, and E x. 44 . Kathleen viewed these amounts as “insulting.”- 18

-

Id . at 481. In this regard, she testified that “I think, to disturb my parents’ remains is not something that money can pay f or. But if someone really was serious, you’d think they would offer a little bit more. But there were no other things * * * offered to me. ” Id . at 487. As to what “ other things ” Kathleen was referencing, she said that Roger could have explained to her that the mausoleum was a family thing . She also stated that if Roger had said he’d like for all of them to be in one mausoleum and honor their parents , she would have been willing to move the bodies in order to keep peace , even though she was opposed to i t. Id. at 489 and 497. 2 {¶ 43} As indicated, the applications for disinterment were filed on December 14, 2020. Oh December 17, 2020, Roger signed the contract with D odds for the GM . At that point, various modifications had been made to the design

. In fact, changes could be made at any time before construction beg an and did occur after the contract was signed

. Id

. at 187, 192, 195, 198, 200

- 201, 203

- 205, 208

- 209 and 217 . Roger paid for half of the construction costs when he signed the contract. The balance was later paid by Roger. No one else paid for any part of the project. Id . at 210

- 211. {¶ 44} I n late December 2020 , Kathleen called Calvary Cemetery . At Meade’s request, the employee who dealt with Kathleen made a memo about the call. According to the memo, the employee spoke with Kathleen on December 22, 2000 . Kathleen had called to request ownership information for Marion and Irene ’s spaces

. Kathleen also asked about a waiver that would allow her to be buried next to her Mother. However, the employee informed Kathleen that no such record existe d. K athleen did not believe her.

2 These, in fact, are things Roger directly said by telling Kathleen he wanted to honor their parents and implied by offering her a space in the mausoleum.- 19

-

On December 20, 2020, Kathleen had also sent an email to another Calvary employee, statin g that she had h ad no idea that she owned the eight plots originally purchased by Marion and ask ing if she could sell them. 3 Subsequently, on December 24, 2020, Ca l vary s ent Kathleen a full copy of the ownership file. Tr. at 88

- 92 , 98, and 101

- 103 , and Ex s . 25 , 26 , and 27

. Furthermore, it informed her that another family owned the crypt next to Irene; therefore, any adjacent crypt would be next to Marion. Tr. at 92

- 93 and 95, and Ex. 25. {¶ 45} Construction of the G M did not begin until after the application s for disinterm ent were filed on December 14, 20 20

. In fact, the actual construction did not
start until the end of June or the beginning of July 2022. At the time of trial, the mausoleum had been constructed and placed and had eight crypts available. Tr. at 153 , 167 , and 211

- 213

. During the design process, no design was produced that did not include eight crypts. Id . at 195. {¶ 46} With this background in mind, we will consider Kathleen’s argument regarding the court’s improper admission of evidence of settlement ne gotiations. According to Kathleen, the court improperly considered this evidence in reviewing three of seven factors used to evaluate whether an application for disinterment should be granted. {¶ 47} Under R.C. 517.24(B) (1) , a person who is not the decedent's surviving spouse may file an application in the probate court of the county in which the decedent is

3 Kathleen’s statement was contra di cted by Calvary’s records, which indicate d that Marion , Irene, and Roger gave Kathleen and her husband permission to use four graves in June 1983 . The records also state d that Kathleen retained the cemetery graves per her November 26, 2001 divorce decree. See Tr. 73 and Ex. 4

.- 20

-

buried , asking the court to issue an order for disinterment of the decedent's remains. In this situation, notice is given to various persons, i ncluding all persons who would have been entitled to inherit from the decedent under R.C. Chap 2105 if the decedent had died intestate. R.C. 517.24(B)(2)(a). 4 {¶ 48} “Well

- established public and legal policy has been that a person, once buried, should not be ex humed except for the most compelling reasons.” In re Disinterment of Frobose ,163 Ohio App.3d 739, 2005

- Ohio

- 5025, 840 N.E.2d 249, ¶ 15 (6th Dist

. ), citing Spanich v. Reichelderfer , 90 Ohio App.3d 148, 628 N.E.2d 102 (2d Dist.1993). “This general policy i s exemplified in the requirement that good cause for disinterment must be demonstrated before the probate court may issue an order for disinterment.” Jasper v. White , 3 d Dist. Marion No. 9

- 22

- 52 , 2023

- Ohio

- 2358, ¶ 25, citing former R.C. 517.24(B)(3)(a). 5

4 In its decision, the probate court noted that the governor had just signed S.B. 202, which would be effective April 3, 2023 . The court stated that the bill’s purpose was “to provide consistency between the disinterment statute [s] (R.C. 517.23 and R.C. 517.24) and right of dispositio n statute[s],” meaning the statutory scheme in R.C. 2108.70 through R.C. 2108.9 0 . Disinterment Decision at p. 15. The court found the amendment s would not impact the case before it. Id . at 16. A fter reviewing the amendments, which took effect after the court’s decision and three years after the application s w ere filed, we agree. The legislation does not provide that it should be applied retroactively with respect to any section involved here. See Am. Sub. S.B. 202, 2022 Ohio Laws 152

.
5 The amendment s effective in April 2023 removed the “good cause” requirement and the requirement that the court find a “compelling reason” for disinterment from R.C. 517.24. However, the amendments substitute d a requirement that courts consider the provisions in R.C. 2108.82

. See R.C. 517.24(B)(3)(a) (2023). R.C. 2108.82(B) contains factors that are consistent with ones courts have traditionally use d to decid e these issues. Compare Frobose at ¶ 1 6 . R.C. 2108.82(C) further states, “There shall be no disinterment or other change of the original or last disposition unless the court makes a finding of compelling reasons based upon the factors listed in division (B) of this section.” Therefore, analysis under the revised statute would not differ m aterially from the prior analysis . We also note that R.C. 2108.70 through 2108 .90 (relating to final- 21

- {¶ 49} A hearing is not required if all persons who are entitled to be given notice consent to the disinterment. R.C. 517.24(B)(3)(b). When courts decide contested requests for disinterment, they apply a “ flexible, multifactor

- equitable standard. ” In re Estate of Eisaman , 2018

- Ohio

- 1112, 110 N.E.3d 96, ¶ 13 (3d Dist.), citing In re Disinterment of Swing , 2014

- Ohio

- 5454, 26 N.E.3d 827, ¶ 16 (6th Dist.). (Other citations omitted.) {¶ 50} “ These equitable factors include, but are not limited to (1) the degree of

r elationship that the party seeking reinterment bears to the decedent, (2) the degree of relationship that the party seeking to prevent reinterment bears to the decedent, (3) the desire of the decedent, (4) the conduct of the person seeking reinterment, esp ecially as it may relate to the circumstances of the original interment, (5) the conduct of the person seeking to prevent reinterment, (6) the length of time that has elapsed since the original interment, and (7) the strength of the reasons offered both in favor of an d in opposition to reinterment.” Frobose at ¶ 16, summarizing Spanich at 152

- 155. (Other citation omitted.) {¶ 51} According to Kathleen, the probate court’s error occurred in relation to factors four, five, and seven , which the court found weighe d heavily in favor of di sinterment . Appellant’s Brief, p. 17, and fn. 14. Kathleen ’s reply brief objects to several conclusions in the court’s decision, including comments the court made about her conduct before litigation. In addition, Kathleen argues that the c ourt elicited settlement

disposition of adult remains) were not effective until October 12, 2006, which was after Marion was interred on March 17, 2006. See Sub.H.B. 426, 2006 O hio Laws 139 and Ex. 1.- 22

-

discussion evidence from her during th e hearing that turned out to match offers Kathleen conveyed to Roger and Carol before the 2021 medi ation, and ten months later. Appellant’s Reply Brief, p. 3. 6 Kathleen argues that no one would ever participa te in settlement negotiations in disinterment cases if they could later be asked ab out
statements made during those negotiations. {¶ 52} Ironically, the parties have changed positions in that Kathleen was the party initially seeking to introduce evidence o f settlement negotiations, and Applicants were the

ones who asked the trial court to exclude this evidence. See Respondent Kathleen Glass ’ Pretrial Statement and attached Ex. A (List of Trial Exhibits), July 11, 2022; Applicants ’ Motion in Limine to Exclude Evidence of Compromise Negotiations, August 2, 2022; Respondent Kathleen Glass ’ Memora ndum in Opposition to Applicant s ’ Motion in Limine to E xclude Evidence of Compromise , August 8, 2022; and Tr . at 11

- 16 ( discussing Respondent ’ s Exs. B and E , pre - lit igation emails between Kathleen’s attorney and Roger’ s attorney). {¶ 53} Kathleen's position in this regard was that no settlement negotiations we re occurring at the time of the pre - litigation emails; they were just “ conversations ” between Kathleen and Roger. Tr. at 13. In addition, Kathleen argued that other statements Roger's attorney made had nothing to do with a settlement or a dispute. Inclu ded among such statements was a comment from Roger's attorney that “ If she, meaning Kathleen

* * * wishes to have a crypt within the mausoleum, Roger is prepared to accommodate

6 The claim about matching offers is not based on evidence in the trial court record. Instead, it refers to evidence attached to Kathleen’s motion to strike, which will be discussed later.- 23

-

that under certain terms and conditions. ” Id . at 15

- 16. {¶ 54} After considering th e matter, the court overruled Roger’s and Carol’s liminal motion, subject to further objections. Id . at 16. As a result, Roger testified during direct and cross

- examination about his pre

- litigation emails with Kathleen , emails with Kathleen’s attorney, a nd emails between his attorney and Kathleen’s attorney (over his renewed objection)

. See Tr. 293

- 294, 295, 298

- 300, 304, 308 , 311, 330 , 331, 324

- 326 , and 356

- 360, and Ex s

. 38, 39, 43, 44, 56, 57, 59 , C, E, and J. {¶ 55} During cross - examination, Kathleen’s attorney asked Roger about Ex. E, which was an email from Roger’s attorney to Kathleen’s attorney. At that point, Roger’s attorney objected , noting that “this was the subject of a prior motion in limine” and that “[t]he court was going to consider the question as the evidence was coming in.” Id. at 356. A discussion then ensured, during which Kathleen’s attorney argued that the questioning was intended to show that a “deception was being perpetrated on both Mr. Warwar and * * * Ms. Glass.” Id . at 358. In contrast, Roger’s attorney argued that “the context of this is that we had two lawyers understanding there was a dispute. There was a planned process and application for disinterment,* * * [s]o the lawsuit was not a maybe; it was a definite. ” Id

. at 359. The court again overru led the objection to the extent it was based on Evid.R. 408 and allowed Kathleen’s attorney to question Roger about statements his attorney made in the email, i.e., in Ex. E. Id . at 359

- 360. {¶ 56} Further discussi on of this issue occurred during Kath leen’s testimony, when Roger’s attorney tried to cross
- examine Kathleen about her response to Roger’s Dec ember 3, 2020 email, in which, as noted, Roger had offered to pay Kathleen an- 24

-

amount of money that she found “ insulting. ” Tr. 480

- 482 and Ex. 44. After Kathleen’s attorney objected because this was “probably a settlement communication,” the court stated that it believed some of the evidence should be admitted because the conduct of the parties was in volved , particularly with consideration of factor seven (which involves

“ the strength of the reasons offered both in favor of a nd in opposition to reinterment

. ” Frobose , 163 Ohio App.3d 739, 2005

- Ohio

- 5025, 840 N.E.2d 249 , at ¶ 16 ; Tr. at 482

- 483. After further discussion (which included the fact that Roger’s counsel had previously discussed Ex. 44 without objection by opposing counsel), the court decided it would continue to consider these matters on a case

- by

- case basis . The court therefore allowed Rog er’ s attorney to question Katherine about Roger’s email. Id . at 4 83

- 485. {¶ 57} During Carol’s testimony, the subject of Evid.R. 408 arose again, when the court asked Carol questions about whether she ever found out if Kathleen would have participated in the mausoleum process after Carol called her (in October 2020) . Tr. at 579

- 585. After discussion , the court st ressed that it did not want to hear about statements made during mediat ion. Id. at 5 85. The court followed this by asking Carol about her opinion of what Kathleen’s real objection to disinterment was and whether Carol felt Kathleen would have wanted to participate if she had seen the schematics with the four statues and nam es in August 2020. Id . at 586

- 5 87. Carol responded that she honestly did not know why Katherine objected and that she did not “ understand why someone would not want to move their parents to a better place where we could all be buried together .” Id

. at 5 86. Carol also said that in her heart of hearts, she thought that Kathleen would maybe want to be with them, but maybe Kathleen did not want to settle.- 25

-

Id . at 586

- 587

. {¶ 58} During her own case, Kathleen’s attorney asked Kathleen about the email that Roger’s a ttorney had sent to Kathleen’s attorney on October 30, 2020 (Ex. E) and
statements made in the email. Tr. at 669

- 67 1

. Thus, during trial, Kathleen advocated for admission of settlement matters when it suited her and objected when she wished such evidence to be kept out of evidence. {¶ 59} Kathleen also said in her pretrial statement th at she intended to call Roger’s attorney at trial to testify about communications he had had with her attorney “and associated documents.” Respondent Kathleen Glass’ Pretrial Sta tement (July 11, 2022), p. 3. And f inally, the exhibit list attached to Kathleen’s pretrial statement included all the pre - litigation emails between Roger and Kathleen ; all such emails between Roger and Carol ; Roger’s email to Kathleen’s attorney; and the email from Roger’s attorney to Kathleen’s attorney. See Ex. A attached to Kathleen Glass Pretrial Statement, Items A, B, C, D , E, F, J, K, M, S, T, and QQQ ( the last item being a January 23, 2020 email from Roger to Kathleen that was not identified or discussed at trial). {¶ 60} In light of the above discussion, we conclude that Kathleen waived objections to admission of evide nce under Evid.R. 408. Specifically, while Kathleen did object to admission of evidence at various times during trial, she had no issue with admitting such evidence when it was to her advantage , both during trial and in responding to A pplicants’ pre

- trial liminal motion. However , Kathleen opposed admission when it was not to her benefit. The law is well

- established that “ a party cannot be permitted to occupy inconsistent positions or to take a position in regard to a matter which is directly- 26

-

contrary to or inconsistent with one previously assumed by him. ” (Citations omitted.) Van Dyne v. Fid.

- Phenix Ins. Co ., 17 Ohio App.2d 116, 127, 244 N.E.2d 752 (7th Dist.1969)

. {¶ 61} The quoted statement typically applies to parties who act in a particular

man ner before litigation i s filed and then advocate for an inconsistent position during litigation

. While the current situation does not fit neatly into that context , the principle rings true here , as it did in Nationwide Ins. Co. v. Hall, 7th Dist. Jefferso n No. 1258, 1978 WL 214906 (Mar. 23, 1978). There, the court st resse d that “ [i] t is fundamental that a party cannot take inconsistent positions such as plaintiffs are attempting to do in this case by introducing evidence as to the death of defendant's sis ter and then objecting to defendant’ s doing the same thing .” Id . at *3. At a minimum, Kathleen’s inconsistent postures significantly detract from the force of her argument. {¶ 62} Furthermore, even if waiver did not apply , the probate court did not abuse its discretion . In the first place, the parties tried the case to the court. In this situation, trial courts are presumed “to know the law.” Donofrio v. Whitman , 191 Ohio App.3d 727,
2010

- Ohio

- 6406, 947 N.E.2d 715, ¶ 46 (9 th Dist.) , citing E. Cleveland v. Odetellah , 91 Ohio App.3d 787, 794, 633 N.E.2d 1159 (8 th Dist.1993)

. Trial courts are also presumed “to have considered only admissible evidence unless the record indicates otherwise .” White v. White , 2d Dist. Clark No. 2013

- CA

- 86 , 2014

- Ohio

- 1288, ¶ 11, citing Cleveland v. Welms , 169 Ohio App.3d 600, 2006

- Ohio

- 6441, 863 N.E.2d 1125, ¶ 27 (8th Dist.). {¶ 63} We also agree with the probate court that the evidence in question was not precluded by Evid.R. 408. As a preliminary point, none of the witnesses testified as to the content of the mediation proceedings or about statements made during mediation.- 27

-

This was the only formal settlement negotiation that w as conducted. Furthermore, disinterment cases are somewhat unique. Specifically, t he factors outlined in deciding whether disinterment is allowed require courts to consider motive and conduct. {¶ 64} For example, the seventh factor, “ the strength of the reasons offered both in favor of a nd in opposition to reinterment,” does consider motive, which can be expressed by statements, but is also often shown through an individual’s conduct

. See Spanich , 90 Ohio App.3d at 154

- 1 55, 628 N.E.2d 102 ( noting that “[i]f the person seeking or opposing reinterment does so to harass an other, his case will be very weak ”). See also Frobose , 163 Ohio App.3d 739, 2005

- Ohio

- 5025, 840 N.E.2d 249, at ¶ 24 . In Frobose , the court considered the applicant’s conduct after filing her action for disin t erment , i.e

. , that shortly after the action wa s filed, the decedent’s son “ completely acquiesced to [the applicant’s] demands, ” which removed her professed reasons for seeking disinterment. Id

. {¶ 65} In the case of In re Estate of Eisaman , 2018

- Ohio

- 1112, 110 N.E.3d 96 (3d Dist.) , a decedent’s sister told his widow that she could not be buried beside her husband in the family plot because the deed had been given to a trust that precluded the widow from being buried there . As a result, the widow disinterred her husband’s body and

mov ed it to another cemetery. The decedent’s sister then filed an application for disinterment, seeking to move the body back to the family plot. Id . at ¶ 1

- 5. {¶ 66} During trial, the sister testified contradictorily that the deed transfer allowed the widow to be buried in the family plot and that she was not opposed to the widow ’s being buried there. Id . at ¶ 23. The trial court found that the sister’s “t estimony- 28

-

concerning her change of heart was d isingenuous ” and “that her objection * * * softened only in the face of litigation.” Id . The court of appeals concluded that competent, credible evidence supported th ese conclusion s

. Id

. The court therefore considered the sister’s pre - and post
- litigation statements because they related to motive. Consequently, in the case before us, the probate court correctly found that Kathleen’s comments before the action was filed , as well as her motives expressed through conduct in continuing to oppos e disinterment , w ere relevant to its analysis

. {¶ 67} Accordingly, the first assignment of error is overruled.

III. Waiver of Right to Seek Disinterment {¶ 68} Kathleen’s second assignment of error states that: The Court Erred in Failing to Find that Applicants Wa ived Their Right to Seek Disinterment. {¶ 69} Under this assignment of error, Kathleen contends that Roger and Carol waived their right to seek disinterment because they had not object ed to placement of their parents in the SoC and had f ailed to seek disinterment of Irene and Marion for about 20 and 16 years, respectively. {¶ 70} As a preliminary point, we stress again that this case involved a bench trial.

“ When appellate courts review judgments following bench trials, a presumption applies that the trial court's findings are correct. ” McNelly v. Conde , 2021

- Ohio

- 146, 166 N.E.3d 697, ¶ 18 (2d Dist.) , citing Fed. Ins. Co. v. Fredericks , 2015

- Ohio

- 694, 29 N.E.3d 313, ¶ 21 (2d Dist.). “ Consequently, appellate courts may not substitute their judgment for- 29

-

that of trial courts and must affirm judgments that are ‘ supported by some competent, credible evidence going to the essential elements of the case. ’ ” Id ., quoting State ex rel. Petro v. Gold

, 166 Ohio App.3d 371, 2006

- Ohio

- 943, 850 N.E.2d 1218, ¶ 81 (10th D ist.). (Other citations omitted.) {¶ 71} We also keep in mind that we must defer to the factfinder in bench trials.

“ The underlying rationale of giving deference to the findings of the trial court rests with the knowledge that the trial judge is best able to vi ew the witnesses and observe their demeanor, gestures and voice inflections, and use these observations in weighing the credibil ity of the proffered testimony.” Seasons Coal Co. v. Cleveland , 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984). Accord McNelly a t ¶ 19. {¶ 72} R.C. 517.24 does not contain a statute of limitations, nor does it say anything about “waiver.” The length of time is only one factor in assessing applications , and the circumst ances in each disinterment case obviously differ. The fact that Roge r and Carol waited for some time was not significant. As the probate court noted, when Marion died, only two spaces remained for the three children, and it “ created a math problem that was not remedied until the construction of the Glass Family Mausoleum. ” Disinterment Decision at p. 4. While the court stated that the time lapse weighed against disinterment, it found the lapse understandable since the G M was not completed until July 2022 and was not an option when Marion and Irene were interred. Id

. at 12

- 13. This is true. The court also stated that , because Roger had died in 2022, the GM would likely be permanent, and the court viewed “ time periods of one or two decades as significant to one life, but not eternity. ” Id . at 13. The court’s reasoni ng was not- 30

-

unsound. {¶ 73} The case Kathleen primarily relies on is Spanich , 90 Ohio App.3d 148, 6 28 N.E.2d 102, in which we found “ substantial, relevant and probative evidence to support the trial court's conclusion that the appellant waived his rights to disi nter his wife by failing to object to her place of burial for nearly two years. ” Id . at 156. However, the facts in Spanich were quite different from those involved here. {¶ 74} Specifically, a t the time of her death, the decedent and her husband had been separ ated for nearly two years , and she was living in her hometown

. The reason for the separation was that the husband had forged the decedent’s name on $40,000 in checks in Atlantic City, New Jersey, and had admitted he had a gambling problem. Id

. at 150. S hortly before dying of blunt force trauma, the decedent had consulted an attorney about divorcing her husband. Her parents paid for the decedent’s funeral and grave site, purchased two plots ne xt to her, and paid for a monument that included their names as well as that of their daughter. Id

. {¶ 75} The husband filed exceptions to the inventory in the decedent’s estate and also challenged some survivorship accounts that were in her name and that o f her mother. Before that litigation was resolved, the husband contacted the cemetery about moving his wife’s body to another grave. He denied during cross

- examination that he was trying to blackmail his wife’s parents “ by threatening to disinter their d aughter's body in order to obtain money from [them] to pay a $40,000 civil judgment emanating from the forgeries. ” Id

. The probate court granted a permanent injunction against disinterment, stating that the husband “ ‘ has not been motivated by love, hono r, or respect for the deceased or her- 31

-

parents. Quite the contrary, this court can only describe [his] conduct and attitude in this entire matter as egregious, greedy, and a gross infringement of any form of decency. ’ ” Id

. at 151, quoting the probate cou rt ’s decision. {¶ 76} After we considered the factors that were later summarized in Frobose , 1 63 Ohio App.3d 739, 2005

- Ohio

- 5025, 840 N.E.2d 249, at ¶ 16, we found that substantial evidence supported the probate court’s decision. Id. at 1 56

. {¶ 77} Having given proper deference to the probate court here , we find no error i n its failure to find that Roger and Carol had waived their right to seek disinterment. As indicated, the facts in each case are unique, and court s have not found fault where the d isinterment occurred a long time after the decedent was initially buried

. Se e Sencenbaugh v. Monclova T w p ., 6th Dist. Lucas No. L

- 87

- 081, 1987 WL 19580 (Nov. 6, 1987) (rejecting complaint for wrongful disinterment and trespass where decedent’s son disinte rred him from an Ohio cemet e ry fifteen years after he had died and had moved him
to a cemetery in North Carolina, where his wife was buried

. The court noted that the son

“ did in fact fully comply with the statutory require ments of R.C. 517.23 and 517.24.” Id

. at *3). See also Scott v. Spearman , 115 Ohio App.3d 52, 54, 684 N.E.2d 708 (5th Dist.1996) (finding no action for wrongful disinterment where decedent’s wife filed an application for disinterment and was allowed to move her husband’s body more than 18 years after he was buried). Admittedly, these cases involve actions for wrongful disinterment , but they do indicate that the lapse of time here was n either unusual n or

un precedented. In any event, this is simply one factor in considering whether applications for disinterment should be granted

.- 32

- {¶ 78} In her reply brief, Kathleen stresses our statement in Spanich that “ ‘ [w]aiver is a particularly appropriate principle to apply in the interpretation of the disinterment
statute. ’ ” Appellant’s Reply Brief at p. 6, quoting Spanich , 90 Ohio App.3d at 156, 628 N.E.2d 102 . However, we also emphasized in this context that “[t] h e disinterment of the Spaniches’ daughter would surely c ause them to revisit the acute pain they must have felt upon her untimely death. ” Id

. In contrast, both decedents here led prosperous , apparently happy , and long lives, Irene having died at age 84, and Marion having died at age 92. See Exs. 1 and 2. Th ere was no indication that relocating their caskets to a nearby location in the same cemetery would cause anyone to revisit the acute pain of their deaths. Furthermore, Spanich involved a situation in which the conduct of the husband who wanted to disinte r the decedent was so bad that the trial court found he could not even “ ‘be considered the surviving spouse as was intended under this statute [R.C. 517.23] for purposes of disinterment.’ ” Spanich at 151

- 152. That is not the case here. The evidence indicates that Roger and Carol desired to honor their parents. {¶ 79} Based on t he preceding discussion, the second assignment of error is overruled.

IV. Granting the Applications for Disinterment {¶ 80} Kathleen’s third assignment of error states that: The Court Erred in Granting the Applications for Disinte r ment. {¶ 81} Under this assignment of error, Kathleen discusses the seven

- factor test and argues that under h er assessment of the facts, equitable considerations required- 33

-

denial of the application s

. As noted, these seven factors were outlined in Frobose , 163 Ohio App.3d 739, 200 5

- Ohio

- 5025, 840 N.E.2d 249, at ¶ 16. T he probate court found the first two factors (degree of relationship of party seeking reinterment bears to the decedent, and degree of relationship of person seeking to prevent reinterment ) were neutral, because all the parties bore the same relationship to their parents. Disinterment Decision at p. 8

- 9. Concerning the remaining factors, the court found factor three weighed in favor of disinterment, factors four, five, and seven weighed heavily in favor of disinterm ent, and factor six, while weighing against disinterment, was not significant. Id

. at 9

- 15. We will discuss these matters briefly, since we have already mentioned many relevant facts while discussing the prior assignments of error

.

A. The Decedents’ De sires {¶ 82} The third factor is “the desire of the decedent.” Frobose at ¶ 16. As noted, the probate court considered this factor as favoring disinterment, but did not weigh it as heavily as other factors. The court found that , in r eality , one could only speculate what Marion and Irene wanted, since the GM did not exist when they were interred and they were limited in options when they purchas ed crypts in SoC. Disinterment Decision at p. 9. The court also stressed that in order to make the math work for the SoC , one child would have had to make a concession. Id

. {¶ 83} Furthermore, t he court found that the GM was consistent with many of Irene ’s a nd Marion’s desires, including being buried above ground, being in a Catholic cemetery, being very close to where they were originally interred, allowing Marion to be- 34

-

next to Irene, and “permitting the entire family to be buried closer together, which appe ars to be what the decedents wishe d , from their purchase of eight burial plots and then four crypts.” Id

. Additionally, the court commented that Irene had not been happy with the aesthetics of the SoC but had little choice at the time, and that the elega nt nature of the GM would correlate with Irene’s lifestyle. Id . at 9

- 10. {¶ 84} According to Kathleen, the court erred because Marion and Irene had had “options” and Irene had been especially interested in SoC. She further argues that her parents could hav e either moved their private mausoleum to a “more desirable location” or purchase d spaces in the SoC, and they chose SoC. Appellant’s Reply Brief at p. 8. {¶ 85} First, the original private mausoleum ’s location in an unattractive area “helped create interest” for the new SoC location. Tr. at 67. This did not mean that the decedents were particularly enamored with the SoC. It is true that Marion and Irene had an option to relocate the ir mausoleum, but there is no evidence in the record that anything “more desirable” was available at that time ; in fact, there is no description at all in the record of any other locations then available

. Id. at 71

- 72. As indicated, the section where Roger located the GM was not available at the time

. Id . at 72. There was testimony that the prior mausoleum was later sold to someone else and relocated to a more attractive location, but no time period was specified with respect to that transaction

. Id . at 131. {¶ 86} It is also true t hat Calvary’s director said he had met with Marion and Irene in 1997 and that Irene had liked the SoC. Id . at 132. However, Carol testified that Irene had had a heart

- attack in the middle of the night and that she (Carol) believed SoC was- 35

-

a “stop

- gap” me asure so her parents would have somewhere to go. Id

. at 539. This
may have been the basis for the court’s conclusion that Irene did not like the aesthetics of the SoC. The court did not cite a specific part of the transcript, but the court clearly found Roger and Carol credible and did not find Kathleen credible. {¶ 87} Furthermore, the court was correct in every other respect. There was testimony that Irene wanted to be in a mausoleum above ground and wanted to be with her family, which included the three children and Marion. Id. at 532

. This would not have been possible at the SoC because the SoC had only two remaining spaces for the children

. And, as indicated, the court did not weigh this factor as heavily as the others, which was appropriate since one could on ly speculate as to the decedent s ’ preferences. Clearly, Marion and Irene wanted a private mausoleum but did not hav e other good options when they chose inte r ment in the SoC.

B. Conduct of Person Seeking Reinterment {¶ 88} T he fourth factor is “the conduct of the person seeking reinterment, especially as it may relate to the circumst ances of the original interment .” Frobose , 163 Ohio App.3d 739, 2005

- Ohio

- 5025, 840 N.E.2d 249, at ¶ 16

. {¶ 89} In this regard, the court acknowledged the presumption that the decedents would not wish for their remains to be disturbed but stressed that all three children could not be buried with their p arents. Disinterment Decision at p. 10. The court further noted that Roger and Carol had no choice other than to bury Marion in the SoC in 2006, because no other mausoleum was then available, and Marion wished to be buried next to Irene.- 36

-

The court there fore found their decision to bury Marion in the SoC had no bearing on the request to disinter. Id

. at 11. These observations were consistent with the statement in Spanich that “ the decedent's desire to be buried with his family may be a factor favoring reinterment, if that desire cannot be fulfilled in the place of original interment. ” Spanich , 90 Ohio App.3d at 153

- 1 54, 628 N.E.2d 102

. {¶ 90} In a ddition, the court emphasized t hat Roger invited both siblings to participate in the design and use of t he GM and paid for it, but Kathleen chose not to participate, making Roger’s conduct “ pure, ” as demonstrated by his November 3, 2020 email (which offered Kathleen a space in the GM ). Id ., citing Ex. 57. {¶ 91} Kathleen argues that Roger was dishonest and tamper ed with an image he sent her

. (Roger denied this, and there is no proof that he did so

. See Tr. at 340

- 343 and 391

- 392, and Ex. 56

. ) Kathleen further contends that Roger sought to “trick” her into agreeing to disinter her parents to his mausoleum, “ whic h exclude [d] her from the Glass family completely.” Appellant’s Brief at p. 22. As previously indicated, the court obviously did not find Ka thleen credible and did find Roger and Carol credible. Again, we defer to a trial court’s credibility decisions because the court ha d the best opportunity to see and hear witnesses. Seasons Coal , 10 Ohio St.3d at 80, 461 N.E.2d 1273

. {¶ 92} More importantly, t here was uncontroverted evidence that Roger offered Kathleen a space in the new mausoleum

– a fact that she inexplicably denied at trial. See Tr. at 500

- 501 and Ex. 57 (where, even after being presented with an email in which Roger offered her a space, Ka thleen insisted that she thought the GM was only for Roger and their parents). Accordingly, the court’s findings were supported by competent,- 37

-

credible evidence , and the court did not err in weighing this factor heavily in favor of disinterment.

C. Condu ct of Person Seeking to Prevent Disinterment {¶ 93} The fifth factor is “ the conduct of the person seeking to prevent reinterment .” Frobose , 163 Ohio App.3d 739, 2005

- Ohio

- 5025, 840 N.E.2d 249, at ¶ 16. Concerning this factor, the probate court described Kathle en’s conduct as “nothing short of obstructive, heartless, and damaging.” Disinterment Decision at p. 11. In this vein, the court noted Kathleen’s failure to respond to Roger “timely and reasonably” when he reached out in October 2020 or to respond to ema ils or calls from Roger and Carol. Id

. The court also referenced Kathleen’s statement about cooperating if Roger had said he wanted a family mausoleum when he did just that, and it interpreted Kathleen’s references to money as an indication that Kathleen was “never offered enough money” and that “this whole debate is just about money.” Id

. {¶ 94} Kathleen points to her testimony that disturbing her parents’ remains was not worth any amo unt of money. Appellant’s Reply Brief at p. 23. Clearly the court did not find this credible. The court’s decision was supported by competent, credible evidence. {¶ 95} At trial, Kathleen claimed she was still waiting for “information” in November
2020 and al so said several times that she was not aware the GM was to be a family mausoleum. Tr. at 465, 489

- 490, 501

- 502, and 6 80. This contradict ed Kathleen’s pre litigation statement in an email to her attorney on October 29, 2020, concerning the fact- 38

-

that Roger had approached her about a private mausoleum. Tr. at 620

- 623

. 7 On October 29, 2020, Kathleen told her attorney that , “ I’m positive they know exactly where everyone would be buried [in the GM] , including Carol & her three darlings. Somehow, my gut feeling is that all of a sudden, things will get mixed up & there will be no room for me.” Id . at 622. 8 These statements also contradict Kathleen’s denial that Roger offered her a space in the GM . Tr. at 500

- 501 and Ex. 57

. In light of Kathlee n’s contradiction of facts established by undisputed evidence, the court did not err in discounting her testimony. {¶ 96} Kathleen also claims that the court improperly considered settlement matters in violation of Evid.R. 408 . However, we have already rejecte d that argument. {¶ 97} An additional argument that Kathleen makes is that by selling the two remaining SoC crypts back to Calvary, Roger removed her right to the space in the SoC. But the crypts were not sold back to Calvary. The contract between Roger and C alvary stated that: Pending approved court order , t he fees will be waived for relocation of Marion & Irene Glass to the new mausoleum; a refund of $8900 will be authorized for the return of unused crypts ( M1, Mausoleum 2, Crypt #5495,

7 The parties stipulated at trial that this email had not been produced during discovery but had been disclosed during a grievance hearing against Roger’s attorney, who waived confidentiality for purposes of the probate trial. Tr. at 620

- 622.

8 This also contradict ed Kathleen’s trial testimony before the parties agreed to enter this material into evidence. Specifically, Kathleen had previously testified that she had no idea until April 2021 that her sister, Carol, would be buried in the mausoleum, did not express concern that Carol and her children had firmly committed spots in the mausoleum, and did not ever express concern about Carol and her children being in there. Tr. at 466

- 467.- 39

- 5496). (Emphasis adde d). Ex. 11, p. 2. {¶ 98} Consistent with the contract, Calvary’s director, Meade, testified that no credit had been applied to Roger’s $278,755 purchase (which had been paid in full) , the
two crypt spaces had not reverted to Calvary , and the spaces were still available to all three siblings . Tr. at 80

- 83 , 121, 139 , and 296

- 297, and Ex s . 11, 41, and 42. According to Meade, whether a refund would be applied depended on whether the court authorized

one or a nything concerning the unused crypts. Tr. at 141

- 142. If the court did not order the refund, Calvary could not provide one, since the crypt spaces belonged to the three siblings. Id

. at 142. Because the court did not provide for a refund or disposition in its decision, Kathleen has not lost access to these spaces. {¶ 99} Based on the preceding discussion, the probate court ’s findings were supported by competent, credible evidence, and the court did not ab use its discretion in finding that Katherine’s conduct w eigh ed heavily in favor of disinterment.

D. Len gth of Time Since Original Interment {¶ 100} The sixth factor concerns “ the length of time that has elaps ed since the original interment.” Frobose , 163 Ohio App.3d 739, 2005

- Ohio

- 5025, 840 N.E.2d 249, at ¶ 16. We have already considered this point and, for the reasons stated, find no abuse of discretion in the probate court’ s fin d i ngs.

E. Strength of Reasons Offered For and Against Reinterment- 40

- {¶ 101} The seventh and final factor involves “ the strength of the reasons offered both in favor of and in opposition to reinterment .” Id. at ¶ 16 . In this regard, the court described Kathleen as having “concocted numerous baffling and constantly evolving excuses as to why she would not participate in the Glass Family M useum and further, why she would not consent to the disinterment of her parents.” Disinterment Decision at p. 13. {¶ 102} The court further found that Kathleen was “well

- aware of how important” the mausoleum was to Roger, and that after Roger began to provide d esign information, Kathleen could have had time to negotiate a statue and participation if she had “responded timely and with any sincerity.” Id. The court then described several instances where “ Kathleen’s reasons for refusing consent changed repeatedly .” Id . at p. 14. These included Roger ’s excluding Kathleen (which was untrue); that her parents were not “pretentious,” when in fact they had donated to charitable causes publicly and had not hid a lavish lifestyle; and religious objections which were la ter withdrawn and on which Kathleen provided no evidence

. I n total, Kathleen crafted “whatever excuse appears to have occurred to her.” Id

. {¶ 103} In contrast, the court found that Roger and Carol had solved the “math” problem caused by only having two crypts and that Roger’s November 3, 2020 email to Kathleen “exemplified his desperation, sincerity, frustration, insight, and desire.” Id . at p. 15. {¶ 104} According to Kathleen, her objection never deviated : her objection was that disinterment was not what her pare nts wanted. Appellant’s Brief at p. 25. However,- 41

-

Kathleen did not point to evidence indicating this was her parents’ position , and both Roger and Carol testified that Marion and Irene never stated that they did not want to be moved from the SoC. Tr. at 278 and 585. Carol also said she did not know why Kathleen objected to disinterment; in fact, her October 2020 call to Kathlee n expressed that this was exactly what their parents wanted. Id . at 585. {¶ 105} A t trial, Kathleen related a story about the fact that her mother had been

“ thrilled ” with SoC and that every time Kathleen’s grown children came into town, her mother took them to t he SoC and showed them the bench where they could sit and talk to her and pray. Tr. at 635. The court clearly did not believe this story. {¶ 106} Our preceding discussion has mentioned a number of ways in which Kathleen’s testimony contradicted established fa cts a nd her own testimony, all of which support ed the court’s conclusion that Kathleen gave baffling and changing reasons for her refusal to consent. Having reviewed the entire record, we find competent and credible evidence to support the court’s decisio n to approve the application s for disinterment. Consequently, the third assignment of error is overruled.

V. Denial of Motion to Strike {¶ 107} Kathleen’s fourth and final assignment of error states as follows: The Court Erred in Denying Appellant’s Moti on to Strike Without Conducting an Evidentiary Hearing. {¶ 108} Under this assignment of error, Kathleen argues that the court erred in denying her motion to strike portions of A pplicants’ closing brief or alternatively to reopen- 42

-

the evidentiary hearing. Accordin g to Kathleen, the closing brief contained two material misrepresentations of fact about conditions for her consent to disinterment, and her motion had arguable merit, thus requiring a hearing. While Kathleen mentions Civ.R. 11 briefly, her argument focuses on R.C. 2323.51 (the frivolous conduct statute) and whether her claims had arguable merit such that the probate court erred in failing to conduct a hearing . We will therefore focus on R.C. 2323.51. {¶ 109} A s previously noted, a fter the trial had ended and the parties had submitted closing briefs, Kathleen filed a motion to strike Applicants’ brief and alternatively sought to reopen the hearing to submit supplemental evidence. The first alleged misstatement concerned a condition for consent t o which Kathleen testified at the hearing, i.e., that a space must be i ncluded for her niece, Meredith, and the Applicant s ’ claim that Kathleen “ ‘never communicated this (or any other condition ) to Roger or Carol before the hearing.’ ” Respondent Kathlee n Glass’ Motion to Strike Applicant s ’ Closing Brief or, in the Alternative, to Reopen the Evidence (Dec. 13, 2022) (“Motion to Strike”) , p. 4 , quoting Applicants’ Closing Brief at p. 13. The second alleged misstatement was that “ ‘Kathi’s late

- arrived

- at conditions for consenting were only revealed at the hearing.’ ” Id

. {¶ 110} Despite her prior claim at trial that settlement offers were inadmissible under Evid.R. 408, Kathleen attached two settlement offers to her motion to strike. Both were in writing: one w as dated May 14, 2021, and the other was dated February 7, 2022. Kathleen also included a June 20, 2022 letter from Applicants’ counsel rejecting the last settlement demand. The May 14, 2021 document (Ex. A) was marked “settlement- 43

-

communication subject to Evidence Rule 408 ” and refer red to the order to mediate. The February 7, 2022 document (Ex

. B) was similarly marked. {¶ 111} After Roger and Carol replied to the motion to strike on January 10, 2023, the court denied the motion. See Decision, Order and Entry Denying Motion to Strike, or in the Alternative to Reopen the Evidence (January 17, 2023) (“Strike Decision” ). In the decision, the court first noted that the documents Kathleen had attached were unauthenticated

. Id

. at p. 3. However, t he court’s decision to deny the motion was based on: (1) the fact that, during trial, Kathleen opposed all relevant evidence of attempts to settle or compromise under the guise of Evid.R. 408 , when the rule did not appl y ; (2)

no misrepresentations were made; and (3) there was no need to reopen the trial because the evidence was duplicative of evidence Kathleen provided at trial, and “reopening the case to present two otherwise irrelevant letters in rebuttal to a statement made in a closing brief is simply unnecessary.” Id . at p. 3

- 6. {¶ 112} With certain exceptions that do not apply here, R.C. 2323.51(B)(1) provides, in pertinent part, that “ a t any time not more than thirty days after the entry of final judgment in a civil action or appeal, any party adversely affected by frivolous conduct may file a motion for an award of court costs, reasonable attorney's fees, and other reasonable expenses i ncurred in connection with the civil action or appeal. The court may assess and make an award to any party to the civil action or appeal who was adversely affected by frivolous conduct, as provided in division (B)(4) of this section. ” {¶ 113} In her motion, Kathl een alleged frivolous conduct under R.C.
2323.51 (A ) (2)(a)(iii) and (iv). Strike Motion at p. 3. This subdivision defines frivolous- 44

-

conduct as conduct of a party to a civil action or of the party’s counsel of record “that satisfies any of the following”:

(iii) The conduct consists of allegations or other factual contentions that have no evidentiary support or, if specifically so identified, are not likely to have evidentiary support after a reasonable opportunity for further investigation or discovery. (i v) The conduct consists of denials or factual contentions that are not warranted by the evidence or, if specifically so identified, are not reasonably based on a lack of information or belief. {¶ 114} R.C. 2323.51(B)(2) allows court s to award fees, but only if the court sets a hearing, provides notice of the hearing, holds a hearing at which the parties are permitted to present evidence, and decides : (1) a party’s conduct was frivolous ; (2) a party was adverse ly affected; (3) the amou nt of fees to be awarded

. See R.C. 2323.51(B)(2)(a), (b), and (c ). Courts have held that “ though R.C. 2323.51 requires a trial court to hold a hearing before it grants a motion for attorney fees, a hearing is not required when the court determines, upon consideration of the motion and in its discretion, that the motion lacks merit. ” State ex rel. Delmonte v. Woodmere , 8th Dist. Cuyahoga No. 86011, 2005

- Ohio

- 6489, ¶ 54

. Accord Brock

- Hadland v. Weeks , 7th Dist. Mahoning No. 13 MA 170, 2015

- Ohio

- 834, ¶ 9 ( “[h] olding such a hearing when the court has already determined that there is no possible basis for the award would be a waste of judicial resources ”)

. {¶ 115} Our district has said that “R.C. 2323.51 does not mandate that an- 45

-

evidentiary hearing always be conduc ted to determine whether a particular action involves frivolous conduct, but it does require that if attorney fees are to be ultimately awarded, then a hearing indeed must be held in accordance with subsections (a), (b), and (c) of R.C. 2323.51(B)(2).” Sh ields v. Englewood , 172 Ohio App.3d 620, 2007

- Ohio

3165, 876 N.E.2d 972, ¶ 50 (2d Dist.). Even where a hearing is held, it may be oral or on written materials. Foland v. Englewood , 2d Dist. Montgomery No. 22940, 2010

- Ohio

1905, ¶ 31, citing Shields at ¶ 48. We have also discussed the issue of “ arguable merit ” in this context. Classic Comfort Heating & Supply, LLC v. Miller , 2d Dist. Darke No. 2021

- CA

- 11, 2022

- Ohio

- 855, ¶ 62, citi ng Russell v. Ryan , 2021

- Ohio

- 2505, 175 N.E.3d 969, ¶ 15

- 16 ( 10th Dist. ). No precise definition of arguable merit exists in this context , but in Russell

, the court mentioned terms like “ lack of a triable issue ” and “no basis

. ” Id

. {¶ 116} “The legal standard of review depends on whether a court is reviewing legal or factual decisions.” Horenstein, Nicholson & Blumenthal, L.P.A. v. Hilgeman , 2d Dist. Montgomery No. 28581, 2021

- Ohio

- 3049, ¶ 168 , citing Namenyi v. Tomasello , 2d Dist. Greene No. 2013

- CA

- 75, 2014

- Oh io

- 4509, ¶ 19

- 20. Generally, “ [w] e review lower court decisions on sanctions for abuse of discretion.” Payson v. Phipps , 2d Dist. Miami No. 2021

- CA

- 36, 2022

- Ohio

- 1525, ¶ 67 , citing S tate ex rel. Striker v. Cline , 130 Ohio St.3d 214, 2011

- Ohio

- 5350, 957 N.E.2d 19, ¶ 11. {¶ 117} “However, reviewing factual decisions ‘involves some degree of deference, and we will not disturb a trial court's findings of fact where the record contains competent, credible evidence to suppor t them.’ ” Id ., quoting Shields , 172 Ohio App.3d 620, 2007

- Ohio

- 3165, 876 N.E.2d 972 , at ¶ 54 . Purely legal issues, like those involved- 46

-

in deciding “ ‘ “ whether a pleading or argument is warranted under existing law or can be supported by a good faith ar gument for an extension, modification, or reversal of existing l aw,” ’ ” are reviewed de novo. Id ., quoting Natl. Check Bur. v. Patel , 2d Dist. Montgomery No. 21051, 2005

- Ohio

- 6679, ¶ 10 . (Other citation omitted.) “ ‘ The ultimate decision whether to imp ose sanctions for frivolous conduct, however, remains wholly within the trial court's discretion. ’ ” Id ., quoting Orbit Elecs., Inc. v. Helm Instrument Co. , 167 Ohio App.3d 301, 2006

- Ohio

- 2317, 855 N.E.2d 91, ¶ 47 (8th Dist.). {¶ 118} A s noted, “m ost instances of abuse of discretion will result in decisions that are simply unreasonable, rather than decisions that are unconscionable or arbitrary.” AAAA Ents., 50 Ohio St.3d at 161, 553 N.E.2d 597

. “A decision is unreasonable if there is no sound reasoning process that would support that decision.” Id

. {¶ 119} After reviewing the record, we find no arguable merit to Kathleen’s claims. The probate court therefore did not abuse its discretion in overruling the motion to strike and in rejecting the request to reopen the evidentiary hearing

. {¶ 120} As a preliminary point, the documents that Kathleen attached to the motion were not authenticated. According to Kathleen , the court made a decision before she had time to file a reply brief and remedy this error. However, Kathleen filed her motion on December 13, 2022, and the court did not issue its decision until more than a month later. As a result, Kathlee n had ample opportunity to correct anything she wished

. Nonetheless, the court did not rest its decision on this point. {¶ 121} We also agree with the probate court that Kathleen should not be permitted
to try to conceal evidence of attempts to compromise at tri al and then rely on them when- 47

-

it suit s her purposes. Strike Decision at p. 4. As noted, Kathleen asserted prior to trial that she wanted to use evidence of emails between attorneys and opposed a motion in limine that sought to exclude those matters. The n at trial, Kathleen attempted to limit such evidence b ased on Evid. 408 , but did not succeed. Subsequently, after closing briefs had been filed, Kathleen then contradicted her trial position and sought to add this type of evidence to the record. Ultimat ely, this was fatal to the motion to strike because it demonstrate d a n inconsistent pattern of conduct during the litigation. {¶ 122} The court also found that the Applicants had not misrepresented facts to the court. In this vein, the court stressed the great latitude afford ed in closing arguments. Id . at 5. This is correct. The Supreme Court of Ohio has acknowledged that “counsel should be afforded great latitude in closing argument * * * and that t he determination of whether the bounds of permissible argument have been exceeded is, in the first instance, a discretionary function to be performed by the trial court .” (Citations omitted.) Pesek v. Univ. Neurologists Assn., Inc. , 87 Ohio St.3d 495, 50 1, 721 N.E.2d 1011 (2000)

. Moreover, as we noted, in bench trials, court s are presumed to k now the law and are presumed to consider only admissible evidence. Donofrio , 191 Ohio App.3d 727, 2010

- Ohio

- 6406, 947 N.E.2d 715, at ¶ 46, and White , 2d Dist. Clar k No. 2013

- CA

- 86, 2014

- Ohio

- 1288, at ¶ 11. {¶ 123} Further, we agree with the probate court ’s decision . There is no question that this was a fiercely

- fought case with animosity between opposing parties. In fact, the Applicants’ reply to Kathleen’s closing brie f also allege d various ways in which Kathleen had misrepresented facts and referenced facts not in evidence or that were outside the- 48

-

record. See Applicants’ Closing Reply (Dec. 16, 2022), p. 2 , 3

- 6 , 7 , 8, and 9 (referencing and detailing Kathleen’s “misrepresentations of the evidence ” ; stating that “Kathleen misrepresents facts and r elies on ‘facts not in evidence ’ ” and asking to strike the evidence ; claiming that “ Kathleen argues based on inferences not supported by the record at trial ”; and stating that Kathleen “creates the misleading impression ” and “weaves a revisionist tale” )

. The only difference between the Applicants and Kathleen in this
context was that Applicants did not file a motion to strike asserting frivolous conduct. {¶ 124} The Applicants’ closing brief did reference the record but w as overzealous in stating that Kathleen had never communicated a condition about her niece being entombed in the Glass mausoleum or any other conditions to Roger and Carol before the hearing , and in s tating that Kathleen’s “late

- arrived at conditions were only revealed at the hearing.” Applicants’ Closing Brief (Oct. 28, 2022), p. 13. These statements were technically true based on the evidence presented at the hearing. {¶ 125} However, if one considers th e unauthenticated attachments to the motion to strike, Kathleen did mention her niece in a mediation letter and did later, in February 2022, send an o ffer with some conditions. Applicants ’ s tatements could have been better phrased, but in fact, the court did prohibit testimony about mediation or actual offers , and facts regarding these matters were not in the trial record

. Tr. at 48 2

- 485 , 579, and 585. Therefore, the Applicants accurately stated the trial record as it existed. Based on the circumstance s here, which include intense advocacy on both sides, the court correctly found no basis for the motion to strike. {¶ 126} Kathleen has only briefly mentioned her alternative motion to reopen the- 49

-

evidentiary hearing. In this regard, she argues that the court sh ould have reopened the hearing to admit evidence of the settlement offers. Appellant’s Brief at p. 29 and fn. 18 , citing Evid.R. 611(A)

. {¶ 127} “Trial courts are given great deference in controlling their dockets, and therefore, a reviewing court uses an abuse of discretion standard when reviewing a trial court's requirements in this area.” Mathewson v. Mathewson , 2d Dist. Greene No

. 20 05

- CA

- 35, 2007

- Ohio

- 574, ¶ 26, citing State v. Unger , 67 Ohio St.2d 65, 67, 423 N.E.2d 1078 (1981) . Evid.R. 611(A) further pr ovides that “[t] he court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless cons umption of time, and (3) protect witnesses from harassment or undue embarrassment. ” {¶ 128} Typically, this rule is applied where a court restricts the time length of a proceeding , or restricts witness questioning , or allegedly shows judicial bias in conducting a trial

. E.g., In re T.H., 192 Ohio App.3d 201, 2011

- Ohio

- 248, 948 N.E.2d 524, ¶ 39 (2d Dist.); Franks v. Rankin , 10th Dist. Franklin No. 11AP

- 934, 2012

- Ohio

- 1920, ¶ 49 ; Rick's Foreign Exchange Co. v. Greenlee , 2 d Dist. Montgomery No. 26096, 20 14

- Ohio

- 4505, ¶ 27

- 29. However, courts have allowed parties to reopen their cases after resting in order to introduce further evidence. A gain , the d ecision is reviewed for abuse of discretion. Positron Energy Resources, Inc. v. Weckbacher , 4th Dist. Was hington No. 07CA59, 2009

- Ohio

- 1208, ¶ 20. {¶ 129} Given the limit ed number of cases we found in which reopening has been- 50

-

approved, this situation does not occur frequently. The procedure also seems particularly inappropriate when , as here, a case has been pendi ng for a significant period of time and the parties were allowed all the time they needed to try the case. {¶ 130} Nonetheless, the court did not err in this regard. In fact, while the court denied Kathleen’s motion, it did consider the attached documents . The court noted the
content was “ w as not entirely different than the reasons [Kathleen] provided at trial for refusing to consent

– in other words, the evidence was already taken into consideration

– not for offers of compromise but rather subs tantively under Frobos e

. ” Strike Decision at p. 5

- 6. This is true. Thus, while the court denied the motion to reopen , the court actually did consider the exhibits Kat hleen submitted

. However, the court fo und them duplicative of the evidence Kathleen ha d already provided at trial. Id . at p. 7. Again, our review of the record indicates that the court was correct. {¶ 131} Accordingly, the probate court did not abuse its discretion in denying Kathleen’s motion to strike, and the fourth assignment of error is ov erruled.

VI. Conclusion {¶ 132} All of Kathleen’s assignments of error having been overruled, the judgment s of the probate court are affirmed.

. . . . . . . . . . . . .

EPLEY, J. and LEWIS, J. , concur.- 51

-