[Cite as Schaefer v. Bolog, 2018-Ohio-1337.]

STATE OF OHIO, MAHONING COUNTY 

IN THE COURT OF APPEALS 

SEVENTH DISTRICT 

PATRICIA SCHAEFER ) CASE NO. 17 MA 0085 

) 

PLAINTIFF-APPELLEE ) 

) 

VS. ) OPINION 

) 

FRANK A. BOLOG ) 

) 

DEFENDANT-APPELLANT ) 

CHARACTER OF PROCEEDINGS: Civil Appeal from the Court of Common 

Pleas, Probate Division, of Mahoning 

County, Ohio 

Case No. 2015 CI 00024 

JUDGMENT: Affirmed. 

APPEARANCES: 

For Plaintiff-Appellee: Atty. Thomas W. Connors 

Black McCuskey Souers & Arbaugh 

220 Market Avenue South 

Suite 1000 

Canton, Ohio 44702 

For Defendant-Appellant: Atty. Craig T. Conley 

604 Huntington Plaza 

220 Market Avenue South 

Canton, Ohio 44702 

JUDGES: 

Hon. Cheryl L. Waite 

Hon. Gene Donofrio 

Hon. Carol Ann Robb 

Dated: March 29, 2018
[Cite as Schaefer v. Bolog, 2018-Ohio-1337.]

WAITE, J. 

{¶1} Appellant, Frank A. Bolog, appeals the decision of the Mahoning 

County Court of Common Pleas, Probate Division, in favor of Appellee, Patricia 

Schaefer, following jury trial in a will contest action. On appeal, Appellant argues the 

trial court erred when it denied his motion for summary judgment and his motion for 

reconsideration after denial of summary judgment. Appellant contends the court also 

erred in denying his motion for a directed verdict and in entering judgment for 

Appellee after trial. 

{¶2} The parties are brother and sister. Appellant proposed to probate a will 

signed by his father, Decedent. Appellee contested the validity of this will. Appellee 

based her challenge to the will on the testamentary capacity of Decedent, claiming he 

was under the undue influence of Appellant. Appellant contends this matter never 

should have gone to trial and that his motion for summary judgment and his 

subsequent motion for reconsideration of its denial should have been granted 

because Appellee failed to meet her burden to demonstrate that a genuine issue of 

material fact existed. Additionally, Appellant contends the trial court should have 

granted the motion for directed verdict he made after Appellee’s opening statement 

at trial, because Appellee failed to argue that Decedent lacked testamentary 

capacity. Appellant also claims that the trial court erred in entering judgment 

consistent with the jury verdict, but does not provide any argument regarding that 

assignment. Appellant has failed to demonstrate the trial court erred in denying his 

motion for summary judgment or the subsequent reconsideration motion. Further, 

Appellant has failed to demonstrate the trial court erred in denying his motion for a 
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directed verdict or that the trial court erred in entering judgment based on the jury 

verdict. Accordingly, Appellant’s assignments of error are without merit and the 

judgment of the trial court is affirmed. 

Factual and Procedural History 

{¶3} Frank K. Bolog, (“Decedent”) was married to Betty Bolog (“Betty”). Both 

were the parents of Appellant and Appellee. Decedent ran a bus transportation 

business for many years. The business was turned over to Appellant. The family 

home was transferred to Appellee. Decedent and Betty had executed a will in 1954 

which was still valid in 2013 when Decedent, accompanied by Appellant, visited the 

family attorney, Stephen Stone. Decedent asked that the will be rewritten to remove 

Appellee as a beneficiary, allegedly because she was trying to take over the 

business. Stone advised against such action and instead recommended that 

Decedent open a bank account and name Appellant as the beneficiary payable on 

death. Rather than take that advice, on September 10, 2013 Decedent, again 

accompanied by Appellant, visited an attorney who handled the family business, 

Dennis Clunk. Decedent made the same request to remove Appellee as a 

beneficiary under the will. Clunk advised that Decedent “go to lunch” and think about 

it before executing the will. Decedent returned that day, again accompanied by 

Appellant, and executed the will as changed. 

{¶4} Decedent and Betty were living with Appellee and she had been their 

primary caretaker for several years. Guardianship proceedings for Decedent and 

Betty were filed by Appellee in the Stark County Court of Common Pleas, Probate 
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Division, the parties’ county of residence. (Stark County Case No. 219089). 

Decedent had been evaluated for dementia on August 8, 2013, by Dr. Suzanne 

Beason-Hazen. He was found to have mild dementia and was determined to be 

incapable of managing his finances and property. Dr. Beason-Hazen’s report was 

filed with Stark County Probate Court on October 11, 2013. Moreover, on October 

18, 2013, just over a month from the date of the execution of the will at issue here, 

Appellant also filed an application for guardianship for Decedent, representing that 

Decedent was incompetent at that time. The record also contains evidence that on 

November 13 and 14, 2013, Appellant accompanied Decedent to a number of banks 

where several thousand dollars were transferred from an account in both parents’ 

names to an account owned by Decedent and Appellant. At around the same time 

Decedent also executed a power of attorney in favor of Appellant. A guardian for 

Decedent was named by the Stark County Probate Court. The guardian was able to 

recover approximately half of the withdrawn funds. On November 18, 2013, 

Appellant brought Decedent in for an evaluation by Dr. Mark Hostetler at the behest 

of Attorney Clunk. Dr. Hostetler concluded that at the time, Decedent was 

experiencing mild dementia, but disagreed with Dr. Beason-Hazen’s evaluation 

regarding Decedent’s ability to manage his finances. 

{¶5} Shortly afterward, Decedent moved out of Appellee’s home and into 

Copeland Oaks Assisted Living. Betty continued to reside with Appellee. Decedent 

was evaluated at Copeland Oaks on February 3, 2014 by Dr. Mark Shivers, who 

concluded that Decedent’s dementia was mild and that he was competent to make 
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his own decisions and decisions on behalf of his spouse. However, on February 4, 

2014, the Stark County Probate Court issued a judgment entry determining that 

Decedent was incompetent. 

{¶6} A short time later Betty died. A guardian ad litem report was submitted 

in the Stark County matter on June 5, 2014. The guardian concluded that Decedent 

was in full possession of his mental capacities but that the issue of undue influence 

should be investigated or concluded as quickly as possible. Decedent was reevaluated on July 24, 2014 by Dr. Robert DeVies. Dr. DeVies concurred with Dr. 

Beason-Hazen’s prior evaluation that Decedent was incapable of managing his 

personal business. 

{¶7} Despite conflicting medical evaluations and Appellant’s own motion 

seeking guardianship of Decedent, Appellant filed a motion to terminate guardianship 

in the Stark County Probate Court on October 16, 2014. Decedent was evaluated 

again on March 3, 2015, by Dr. Jay Berke, who concluded that Decedent was 

suffering from moderately severe dementia. 

{¶8} Decedent passed away on May 29, 2015. The disputed will was 

admitted to the Mahoning County Court of Common Pleas, Probate Division, on June 

1, 2015. Appellee filed a complaint on June 17, 2015 alleging both that Decedent 

lacked testamentary capacity to execute the 2013 will and that Appellant exerted 

undue influence over him. An answer was filed on June 24, 2015. Appellee sought 

leave and filed an amended complaint on July 13, 2016, naming Appellant both 

individually and in his capacity as executor of the 2013 will. An answer was filed on 
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July 18, 2016. Appellant filed a motion for summary judgment on July 21, 2016 and 

a supplemental memorandum and motion for leave to file a motion for summary 

judgment was filed on July 25, 2016. In his summary judgment motion Appellant 

contended that the Stark County Probate Court found Decedent incompetent but did 

not provide a reason. Thus, Appellee’s assertion in her complaint that Decedent was 

incompetent by reason of dementia was not supported on summary judgment. 

Appellant also argued that the Mahoning County Probate Court, in an earlier entry 

denying a motion filed by Appellee seeking to transfer the matter from Mahoning to 

Stark County, held that Decedent was competent to form an intent to establish a new 

domicile. Therefore, Appellant asserted that the probate court had already ruled on 

Decedent’s competency. Appellee opposed Appellant’s request to file a motion for 

summary judgment, alleging only that it was untimely. 

{¶9} In a judgment entry dated August 24, 2016, the trial court determined 

that the summary judgment motion was timely filed, but denied the motion, holding 

that Appellant failed to demonstrate that no genuine issues of material fact remained 

for trial. The court stated that its earlier ruling, that Decedent had the ability to form 

an intent to establish a new domicile, was based on a different standard than the 

standard required to show Decedent lacked testamentary capacity. The court also 

held that questions of fact remained regarding whether Appellant exerted any undue 

influence on Decedent. 

{¶10} Appellant filed a motion for partial reconsideration of the denial of 

summary judgment on August 29, 2016. In it, he argued the same claims he posited 
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in the underlying summary judgment motion. Appellee filed a motion in opposition, 

simply alleging that because Appellant failed to meet his initial burden in summary 

judgment to prove that no question of fact remained to try, she had no reciprocal 

evidentiary burden. The trial court denied the motion for reconsideration on 

September 13, 2016 and set the matter for a jury trial. After the conclusion of the jury 

trial, on April 5, 2017 the trial court held the proposed will dated September 10, 2013, 

did not constitute the last will and testament of Decedent. Appellant filed this timely 

appeal and raises four assignments of error. 

ASSIGNMENT OF ERROR NO. 1 

THE TRIAL COURT ERRED IN GRANTING JUDGMENT TO 

APPELLEE ON HER WILL CONTEST ACTION. 

{¶11} Appellant provides no argument under the first assignment of error. 

Instead, he refers to it as an “omnibus” assignment of error that is dependent on the 

other three assignments. Pursuant to the appellate rules, as Appellant has failed to 

specifically argue this assignment of error or direct our attention to any portion of the 

record relative to this assignment, it will not be addressed by this Court. App.R. 

16(A)(7). 

{¶12} Turning to those assignments which are supported by argument, 

assignments of error three and four regarding summary judgment will be addressed 

first for purposes of clarity. 

ASSIGNMENT OF ERROR NO. 3 
-7-

THE TRIAL COURT, AS A MATTER OF LAW, ERRED IN DENYING 

APPELLANT'S UNOPPOSED MOTION FOR SUMMARY JUDGMENT. 

ASSIGNMENT OF ERROR NO. 4 

THE TRIAL COURT, AS A MATTER OF LAW, ERRED IN DENYING 

APPELLANT'S MOTION FOR RECONSIDERATION OF ITS DENIAL 

OF HIS UNOPPOSED MOTION FOR SUMMARY JUDGMENT. 

{¶13} Appellant contends the trial court erred in denying his motion for 

summary judgment and his motion seeking reconsideration of this denial, claiming 

that, as a matter of law, there were no genuine issues of material fact left for trial 

concerning an essential element of Appellee’s case. 

{¶14} An appellate court conducts a de novo review of a trial court’s decision 

to grant summary judgment, using the same standards as the trial court set forth in 

Civ.R. 56(C). Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 

(1996). Before summary judgment can be granted, the trial court must determine 

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, (3) it appears from the 

evidence that reasonable minds can come to but one conclusion, and viewing the 

evidence most favorably in favor of the party against whom the motion for summary 

judgment is made, the conclusion is adverse to that party. Temple v. Wean United, 

Inc., 50 Ohio St.2d 317, 327, 364 N.E.2d 267 (1977). Whether a fact is “material” 

depends on the substantive law of the claim being litigated. Hoyt, Inc. v. Gordon & 

Assoc., Inc., 104 Ohio App.3d 598, 603, 662 N.E.2d 1088 (8th Dist.1995). 
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{¶15} “[T]he moving party bears the initial responsibility of informing the trial 

court of the basis for the motion, and identifying those portions of the record which 

demonstrate the absence of a genuine issue of fact on a material element of the 

nonmoving party’s claim.” (Emphasis deleted.) Dresher v. Burt, 75 Ohio St.3d 280, 

296, 662 N.E.2d 264 (1996). If the moving party carries its burden, the nonmoving 

party has a reciprocal burden of setting forth specific facts showing that there is a 

genuine issue for trial. Id. at 293. In other words, when presented with a properly 

supported motion for summary judgment, the nonmoving party must produce some 

evidence to suggest that a reasonable factfinder could rule in that party’s favor. 

Brewer v. Cleveland Bd. of Edn., 122 Ohio App.3d 378, 386, 701 N.E.2d 1023 (8th 

Dist.1997). 

{¶16} The evidentiary materials to support a motion for summary judgment 

are listed in Civ.R. 56(C) and include the pleadings, depositions, answers to 

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

stipulations of fact that have been filed in the case. In resolving the motion, a court 

views the evidence in a light most favorable to the nonmoving party. Temple, 50 

Ohio St.2d at 327. 

{¶17} Appellant claims that his motion contained unrefuted evidence in the 

form of the sworn depositions of Attorney Clunk, who drafted the disputed will, and 

Appellee. Clunk testified that he believed Decedent was competent when he came 

to Clunk’s office seeking to draft a new will. Appellant also relies on Appellee’s 

deposition testimony, where she stated that she had no personal knowledge 
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Appellant exerted undue influence on Decedent, but noticed manipulation of 

Decedent by Appellant. While Appellant discussed the Stark County probate finding 

of incompetency, he highlighted that the trial court never gave a reason for its finding. 

Appellant cited to his own motion to terminate Decedent’s guardianship, although it 

was never adjudicated due to Decedent’s death. Finally, Appellant referenced the 

findings of two separate physicians (Dr. Shivers and Dr. Hostettler) who found 

Decedent to be competent during the pendency of the guardianship proceeding. 

Appellant claims that Appellee presented no evidence at summary judgment 

contradicting this testimony and presented no additional evidence demonstrating 

Decedent lacked testamentary capacity. 

{¶18} In the instant matter, Appellant’s initial summary judgment motion was 

not opposed by Appellee. Once it was denied, Appellee’s response to Appellant’s 

reconsideration motion was that the record as provided by Appellant himself showed 

that genuine issues of material fact existed because two physicians had found 

Decedent incompetent, suffering from moderately severe dementia, and Stark 

County had ordered a guardianship for Decedent. Appellee argued that, as 

Appellant had not met his burden to demonstrate that there was no genuine issue of 

material fact, Appellee was not required to further respond to the motion. 

{¶19} Summary judgment may be appropriate when the nonmoving party 

does not produce evidence on any issue for which that party bears the burden of 

production at trial. Abram v. Greater Cleveland Regional Transit Auth., 8th Dist. No. 

80127, 2002-Ohio-2622 at ¶ 43. However, even when a summary judgment motion 
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is unopposed, the motion and supporting evidence must show that no material fact in 

the case is in dispute before the court can grant the motion. Charles Gruenspan Co. 

v. Thompson, 8th Dist. No. 80748, 2003-Ohio-3641. Therefore, the only relevant 

argument under this assignment is whether at the time the motion for summary 

judgment was filed, no material fact remained outstanding and Appellant was entitled 

by law to judgment. 

{¶20} Although Appellee failed to respond to Appellant’s motion for summary 

judgment, Appellant himself included contradictory evidence within his summary 

judgment motion. Appellant directed the trial court to the medical evaluations of both 

Drs. Shivers and Hostettler, who both concluded Decedent possessed the 

competency required to manage his own affairs. However, Appellant also referred to 

the expert evaluation and findings of Dr. Beason-Hazen filed in the Stark County 

Probate Court. Dr. Beason-Hazen concluded that Decedent was not capable of 

managing his finances properly. Based on this expert opinion, the Stark County 

Probate Court issued an entry dated February 4, 2014, finding Decedent to be 

incompetent. Both of these evidentiary items contradict the assertions made by 

Appellant in his own motion, demonstrating that there were genuine issues of 

material fact precluding summary judgment. Based on this, the trial court did not err 

in denying Appellant’s motion for summary judgment and the later request for 

reconsideration of that denial. 

{¶21} Additionally, we must note that denial of a motion for summary 

judgment generally cannot be reversed on appeal if the matter has gone to trial on 
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the identical factual issues raised in the summary judgment motion. Continental Ins. 

Co., v. Whittington, 71 Ohio St.3d 150, 156, 642 N.E.2d 615 (1994). This rule 

prevents the fundamental unfairness inherent in overturning a fully litigated jury 

verdict in favor of a judgment rendered on an abbreviated presentation of evidence. 

Id. 

{¶22} The Continental case applies unless denial of summary judgment must 

be reversed on the application of law, even if the case went to trial and a verdict was 

rendered. Continental at 158; The Promotion Co., Inc./Special Events Div. v. 

Sweeney, 150 Ohio App.3d 471, 2002-Ohio-6711, 782 N.E.2d 117, ¶ 15. 

Additionally, an interlocutory denial of summary judgment may be reviewed and 

reversed on appeal if the issues involved at the summary judgment stage were never 

actually litigated at the subsequent trial. Continental at 159. Therefore, we review 

this record not to second-guess the jury’s decisions on factual issues, but to 

determine whether either of the two Continental exceptions to the general rule that 

failure to grant summary judgment is harmless even in an appropriate case when the 

matter is eventually tried. 

{¶23} Appellee raises two main arguments opposing Appellant’s summary 

judgment argument: (1) that any error in denying summary judgment by the trial 

court is moot because trial on the merits was held on the issues; and (2) Appellant 

failed to file a trial transcript of the proceedings necessary to make a determination 

whether the trial court’s ruling was proper. 
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{¶24} We note that Appellant filed a partial transcript containing only 

Appellee’s opening statement. Appellant claims that a full transcript of the trial 

proceedings is not necessary here because none of Appellant’s assignments of error 

rely on the transcript. Appellant also contends because the denial of summary 

judgment constituted an error of law, pursuant to Continental and Sweeney, supra, 

the denial of summary judgment is reviewable and reversible. 

{¶25} Appellant’s motion for summary judgment filed with the trial court was 

based on five pieces of evidence: (1) the earlier determination of incompetency by 

the Stark County Probate Court which failed to state the reason for that finding; (2) 

medical evaluations contradicting the expert evaluation submitted to the Stark County 

Probate Court concluding that Decedent was incompetent; (3) the deposition of 

Attorney Clunk which indicated that he believed Decedent to be competent at the 

time Decedent executed the will in Clunk’s office; (4) Appellee’s deposition testimony 

that she had no personal knowledge of undue influence exerted on Decedent by 

Appellant; and (5) the trial court’s prior ruling that in early 2014 Decedent was 

competent enough to form an intent to establish a new domicile. Appellant 

characterizes this probate court decision as an adjudication of Decedent’s capacity, 

and additionally posits that Appellee’s claim was barred by res judicata.

{¶26} While Appellant contends no questions of fact existed and the summary 

judgment motion was filed based purely on a matter of law, law which the court erred 

in applying and which would enable our review even after jury trial, it is clear from the 

face of Appellant’s motion (even though unopposed by Appellee) that genuine factual 
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issues existed regarding Decedent’s competency. Reference to competing medical 

evaluations as well as to the finding of incompetency by the Stark County Probate 

Court reveal that the facts were far from settled and that the matter did not involve 

merely a legal determination. For this reason, the exception found in Continental that 

the court erred in applying the law to the undisputed facts does not apply in the case 

sub judice. Continental at 158. This matter clearly involved a factual dispute. 

{¶27} The second Continental exception is where the issues involved in 

summary judgment were not actually litigated at trial. Id. at 159. Again, Appellant 

has failed to file a trial transcript as part of the record in this appeal. This failure 

precludes any evaluation of whether the factual issues presented in summary 

judgment were actually litigated at trial. It is Appellant’s duty to provide all transcripts 

necessary for a full review of the issues presented on appeal. 

The duty to provide a transcript for appellate review falls upon the 

appellant. This is necessarily so because an appellant bears the 

burden of showing error by reference to matters in the record. See 

State v. Skaggs (1978), 53 Ohio St.2d 162. This principle is recognized 

in App.R. 9(B), which provides, in part, that “* * * the appellant shall in 

writing order from the reporter a complete transcript or a transcript of 

such parts of the proceedings not already on file as he deems 

necessary for inclusion in the record * * *.” When portions of the 

transcript necessary for resolution of assigned errors are omitted from 

the record, the reviewing court has nothing to pass upon and thus, as to 
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those assigned errors, the court has no choice but to presume the 

validity of the lower court’s proceedings, and affirm. 

Knapp v. Edwards Laboratories, 61 Ohio St.2d 197, 199, 400 N.E.2d 384 (1980). 

{¶28} Without a transcript of the jury trial, we must presume the regularity of 

the proceedings below, including the presumption that the factual issues involved in 

summary judgment were fairly and adequately addressed at trial. The record 

contains nothing to indicate otherwise. Hence, as in Continental, any possible error 

resulting from the denial of Appellant’s motion for summary judgment must be viewed 

as harmless in light of the subsequent jury trial adjudicating the same factual issues. 

{¶29} It appears from the record and from a review of Appellant’s motion for 

summary judgment that there were factual disputes concerning Decedent’s 

competency. When there are genuine issues of material fact in dispute, summary 

judgment is not appropriate. The trial court was correct in overruling Appellant’s 

motion for summary judgment. 

{¶30} Based on the existence of disputed factual issues and the presumption 

that those factual issues were addressed at trial, Appellant’s third and fourth 

assignments of error are without merit and are overruled. 

ASSIGNMENT OF ERROR NO. 2 

THE TRIAL COURT, AS A MATTER OF LAW, ERRED IN DENYING 

APPELLANT'S MOTION FOR A DIRECTED VERDICT FOLLOWING 

APPELLEE'S OPENING STATEMENT. 
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{¶31} Turning to his second assignment of error, Appellant contends the trial 

court erred in denying his motion for directed verdict proffered at the end of 

Appellee’s opening statement. In support, Appellant did submit a partial transcript of 

Appellee’s opening statement and argues that there was no mention of the term 

“testamentary capacity” and no reference to Decedent’s lack of testamentary capacity 

on the day the 2013 will was executed. 

{¶32} “A trial court should exercise great caution in sustaining a motion for a 

directed verdict on the opening statement of counsel.” Brinkmoeller v. Wilson, 41 

Ohio St.2d 223, 325 N.E.2d 233 (1975), syllabus. A trial court may grant a motion for 

a directed verdict made at the end of a party’s opening statement only when the 

opening statement shows that the party will be unable to sustain its cause of action at 

trial. Parrish v. Jones, 138 Ohio St.3d 23, 2013-Ohio-5224, 3 N.E.3d 155, paragraph 

three of the syllabus. 

{¶33} Once a jury has been convened and trial has started, a party may file a 

motion for a directed verdict. Civ.R. 50 governs a directed verdict: 

(1) When made. A motion for a directed verdict may be made on the 

opening statement of the opponent, at the close of the opponent's 

evidence or at the close of all the evidence. 

(2) When not granted. A party who moves for a directed verdict at the 

close of the evidence offered by an opponent may offer evidence in the 

event that the motion is not granted, without having reserved the right 

so to do and to the same extent as if the motion had not been made. A 
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motion for a directed verdict which is not granted is not a waiver of trial 

by jury even though all parties to the action have moved for directed 

verdicts. 

(3) Grounds. A motion for a directed verdict shall state the specific 

grounds therefor. 

(4) When granted on the evidence. When a motion for a directed 

verdict has been properly made, and the trial court, after construing the 

evidence most strongly in favor of the party against whom the motion is 

directed, finds that upon any determinative issue reasonable minds 

could come to but one conclusion upon the evidence submitted and that 

conclusion is adverse to such party, the court shall sustain the motion 

and direct a verdict for the moving party as to that issue. 

(5) Jury assent unnecessary. The order of the court granting a motion 

for a directed verdict is effective without any assent of the jury. 

{¶34} Hence, a motion for a directed verdict can be made after an opponent’s 

opening statement, at the close of opponent’s evidence, and at the close of all of the 

evidence. Civ.R. 50(A)(1). When ruling on a motion for a directed verdict made after 

an opponent’s opening statement, while the trial court is not required to consider the 

allegations contained within the pleadings, the court is permitted to consider them. 

Parrish at ¶ 23-24. The trial court must also liberally construe the opening statement 

in favor of the party against whom the motion is made. Brinkmoeller, syllabus. 
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{¶35} A motion for directed verdict presents a question of law, rather than 

fact. Goodyear Tire & Rubber Co. v. Aetna Cas. & Sur. Co., 95 Ohio St.3d 512, 

2002-Ohio-2842, 769 N.E.2d 835, ¶ 4. On a question of law, we apply a de novo 

standard of review on appeal. Id. 

{¶36} It is axiomatic that opening statements are not evidence and serve 

merely to present a preview of the party’s claims and to assist the jury in following the 

evidence as it will be presented later in the trial. Parrish at ¶ 29. Moreover, an 

opening statement need not discuss every element of a claim. Id. at ¶ 31. The 

Supreme Court of Ohio has stated that only when the opening statement 

demonstrates that the party is completely unable to sustain a cause of action should 

the court take the matter away from the jury and grant the motion for a directed 

verdict. Id. at ¶ 32. 

{¶37} In the instant case, when Appellant moved for a directed verdict, he 

argued at trial that the opening statement only referred to dementia and “that ain’t the 

same as a lack of testamentary capacity.” (2/13/17 Tr., p. 21.) Appellant argued that 

there was no supporting evidence proffered to prove a lack of testamentary capacity. 

Appellant contends that Appellee was alleging a fraud claim and never spoke the 

word “fraud” or established proximate cause between Appellant and fraud in the 

opening statement. Appellee’s counsel argued that he chose not to use legal 

terminology in his opening statement to the jury but that he referenced elements that 

needed to be proven without going into exhaustive detail, reserving that for trial. 
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{¶38} A review of the opening statement reveals that Appellee’s counsel 

provided a chronological recitation of the facts surrounding Decedent’s living situation 

and his relationship with his children, beginning with the execution of the initial will, to 

the conduct of Decedent and Appellant at the time the 2013 will was executed. 

Appellee spoke to the jury about the transfer of the business from father to son, the 

subsequent financial difficulties of the business, and the evidence of large monetary 

withdrawals from Decedent’s accounts that he could not account for. The opening 

statement also discussed constant requests for money from Decedent by Appellant. 

Appellee’s counsel spoke about the medical evaluations which had determined 

Decedent was not competent to make financial decisions, and doctors’ concerns 

about Decedent’s management of money and the possibility that someone 

(Appellant) might be trying to influence Decedent. (2/13/17 Tr., p. 11.) Appellee’s 

counsel also referred to the filing of a request for guardianship of Decedent signed by 

Appellant around the time the 2013 will was executed, as well as evidence that 

Appellant took Decedent to several banks to make withdrawals during that same 

time. (2/13/17 Tr., p. 13.) Thus, during the opening statement, Appellee’s counsel 

introduced and outlined the issues of testamentary capacity and undue influence. 

{¶39} After Appellant moved for a directed verdict, the trial court recessed to 

research the matter. The court ultimately concluded that the complaint and the 

opening statement, when construed in favor of Appellee, did not warrant a directed 

verdict. Appellant complains that in opposing the motion, Appellee cited to a case 

that mistakenly caused the court to believe that it was mandated to take into 
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consideration the pleadings in the matter, instead of merely permitted to consider the 

pleadings in the discretion of the court. The record does not support any error or 

confusion on the part of the judge in this regard. Again, while the court is not 

compelled to take into consideration the allegations contained in the pleadings, it 

may do so if it chooses. 

{¶40} Considering the standard under which a trial court may grant a directed 

verdict made after a party’s opening statement and the record of the opening 

statement and the pleadings, when these are liberally construed in favor of Appellee, 

the trial court correctly denied Appellant’s motion for a directed verdict. The trial 

court’s decision in this regard is affirmed. 

{¶41} Based on the foregoing, Appellant’s assignments of error are without 

merit and the judgment of the trial court is affirmed. 

Donofrio, J., concurs. 

Robb, P.J., concurs.