IN THE COURT OF COMMONS PLEAS WARREN COUNTY CIVIL DIVISION South Waynesville Road (formerly filed under

Transcription

1 IN THE COURT OF COMMONS PLEAS WARREN COUNTY CIVIL DIVISION STEPHEN R. LILLEY CASE NO South Waynesville Road (formerly filed under Morrow, Ohio Case NO. 06CV66195) Judge Sunderland -vs- Plaintiff, BRENDA DUNLAP, individually, and as Co-Administrator of the Estate of Marion G. Lilley, Deceased and JACKSON HEDGES, individually, and as Co-Administrator of the Estate of Marion G. Lilley, Deceased Defendants. VERIFIED COMPLAINT WITH JURY DEMAND ENDORSED HEREON WITH MOTION FOR WRIT OF MANDAMUS Plaintiff Stephen R. Lilley seeks relief for certain conduct including conversion of non-probate assets, fraudulent distribution of non-probate assets, and tortious interference with a right to expectancy. The plaintiff states his causes of action as follows: JURISDICTION AND VENUE 1. This is a civil action for damages and other appropriate relief brought for causes arising under Ohio s common law. 2. Defendants acts and practices of which Plaintiff complains and which give rise to the liabilities hereinafter truthfully pled have occurred in the State of Ohio

2 3. Furthermore, Plaintiff is a recipient of a certificate of deposit having been in the course of business in Warren County, Ohio. 4. Defendant Brenda Dunlap, is an individual who resides in Warren County, Ohio and does business in Warren County, State of Ohio and has served in the capacity of Co-Administrator for the Estate of Marion G. Lilley in the Warren County Probate Court. 5. Defendant Jackson Hedges, is an individual who resides in Warren County, Ohio and does business in Warren County, State of Ohio and has served in the capacity of Co-Administrator for the Estate of Marion G. Lilley in the Warren County Probate Court. 6. The acts and transactions constituting the violations of state and common law complained of herein have occurred in Warren County, State of Ohio. 7. The matter in controversy exceeds, exclusive of interest and costs, the sum of $75, Venue is appropriate in this jurisdiction because during relevant time, Defendants were doing business in or had agents or transacted their illegal conduct in this jurisdiction. Venue is also appropriate in this jurisdiction because this is the judicial district in which the claims arose. PARTIES 9. During all times mentioned in this Complaint, the Plaintiff, Stephen R. Lilley is an individual adult citizen, whose residence is located at 2900 South Waynesville Road, Morrow, County of Warren, State of Ohio, with a postal zip code of

3 10. During all times mentioned in this Complaint, Defendant Brenda N. Dunlap is a resident of the State of Ohio, with her business address located at 212 West Main Street, P.O. Box 115, Blanchester, State of Ohio, with a postal zip code of During all times mentioned in this Complaint, the Defendant Jackson Hedges is a resident of Warren County, State of Ohio, with his business address located at 24 North Broadway, Lebanon, State of Ohio, with a postal zip code of STATEMENT OF FACTS 12. Marion G. Lilley and Stephen R. Lilley held a Certificate of Deposit in joint name and survivorship. 13. Defendants Dunlap and Hedges had knowledge that the Certificate of Deposit had matured and was cashed without the knowledge of Stephen R. Lilley. 14. Defendants knew the proceeds of the certificate of deposit were used to pay fees to Patricia Suttman as guardian for Marion G. Lilley and to pay fees due Defendant Dunlap in the amount of approximately $40, Defendants Dunlap and Hedges knew that the remaining proceeds of the certificate of deposit were used to purchase an annuity for the benefit of Marion G. Lilley. 16. Defendants knew that the funds were owned by Stephen R. Lilley, including his future interest, and that said funds were diverted into an account that would deprive him of his claim to these funds.

4 17. Defendants Dunlap and Hedges knew that the proceeds from the annuity plan in the name of Marion G, Lilley were not a proper asset of Marion G. Lilley s estate. 18. Defendants Dunlap and Hedges by including the proceeds from the annuity plan in the Estate of Marion G. Lilley knew that said proceeds were not nonprobate assets which become a constructive trust for the benefit of Plaintiff Stephen R. Lilley 19. Defendants Dunlap and Hedges by including the proceeds from the annuity plan in the Estate of Marion G. Lilley knew that inappropriate distribution of said annuity proceeds would increase distributions to Pamela Lilley and Christopher Lilley, now deceased, whom were not entitled to this non-probate asset. 20. Defendants Dunlap and Hedges as Co-Administrators of the Estate of Marion G. Lilley distributed the annuity plan proceeds as part of the distribution of assets to the beneficiaries of the Estate of Marion G. Lilley, knowing that said distribution included a non-probate asset to the detriment of Plaintiff Stephen R. Lilley. 21. Defendants Dunlap and Hedges conduct was appealed to the 12 th District Court of Appeals, who issued a decision that advised them said certificate of deposit was a non-probate asset including the resulting in purchase of the annuity plan, which should not have been included in the probating of the Estate of Marion G. Lilley; that said assets were the property of Plaintiff Stephen R. Lilley. 22. Defendants Dunlap and Hedges have continued to deprive Plaintiff Stephen R. Lilley by avoiding taking action to recover the funds in derogation of the decision of the 12 th District Court of Appeals which Defendants had improperly distributed, by abdicating their duty.

5 beneficiaries. 23. Plaintiff Stephen R. Lilley has been unable to recover said assets from the 24. Plaintiff Stephen R. Lilley has expended funds in taking actions to recovery his asset that was made a part of the probate estate in an amount in excess of $95,000. FIRST CAUSE OF ACTION (Tortious Interference with a right of expectancy) 25. Paragraphs 1 through 24 are re-alleged and incorporated herein by reference of this Complaint. 26. Plaintiff maintains that as the survivorship beneficiary of the certificate of deposit with Marion G. Lilley and the subsequent annuity plan and proceeds that defendants interfered with the same for the purpose of depriving him of this asset. 27. Plaintiff alleges that said Defendants intentionally and/or tortuously interfered with expectancy of inheritance from Marion G. Lilley, deceased, pursuant to the dictates espoused in Firestone v. Galbreath (1993), 67 Ohio St. 3d 87, 616 N.E.2d Defendants Dunlap and Hedges had knowledge that the certificate of deposit and the subsequent annuity plan and its proceeds should not be probate assets; defendants ignored said information preventing Stephen R. Lilley from recovering a survivorship interest from Marion G. Lilley. 29. Defendants Dunlap and Hedges intentionally committed tortuous conduct, of fraud, duress, coercion, and/or undue influence, all of which resulted in an interference with Stephen R. Lilley s expectancy.

6 30. As direct and proximate result of Defendants tortuous conduct Stephen R. Lilley has suffered damages and subjected him to the loss of his expectancy and costs of the process of protecting his claim, all to his detriment. SECOND CAUSE OF ACTION (Common Law Fraud) 31. Paragraphs 1 through 30 are re-alleged and incorporated herein by reference of this Complaint. 32. Defendants owed a duty to the Plaintiff Stephen R. Lilley to disclose, that they had received a non-probate asset from an annuity plan that should have been for the benefit of Stephen R. Lilley. 33. Defendants through the receiving of the annuity plan proceeds sought to convert the proceeds away from one of its proper owners, Stephen R. Lilley, for their own personal gain. 34. Defendants intentionally failed to provide Plaintiff Stephen R. Lilley with the proceeds from the annuity plan from which they had received the proceeds knowingly depriving him of his funds of which they would subsequently disburse to others. 35. Defendants Dunlap and Hedges knowingly deprived, defrauded and prevented Plaintiff Stephen R. Lilley of funds that were due him. 36. This conduct by the Defendants was the proximate cause of the severe financial injuries suffered by Plaintiff Stephen R. Lilley. THIRD CAUSE OF ACTION (Writ of Mandamus) 37. Paragraphs 1 through 36 are re-alleged and incorporated herein by reference of this Complaint.

7 38. The Warren County Probate Court ruled that Plaintiff Stephen R. Lilley was entitled to the $60,000 that remained of the funds originally in CD account 4591 that had been integrated into the Estate of Marion G. Lilley. It found that the survivorship nature of the account was not terminated by Marion's incompetence and the appointment of a guardian for her. Further, though Marion's guardian transferred the funds from the joint and survivorship account to different accounts, those funds retained their survivorship identity, and Stephen R. Lilley was entitled to any of the remaining funds at Marion's death. 39. The Warren County Probate Court determined in the record that the guardian eventually placed the $60,000 in an annuity fund, which became part of Marion's estate at her death. Accordingly, the Twelfth District Court of Appeals determined that the probate court did not abuse its discretion in determining that Stephen R. Lilley was entitled to the $60,000, the funds remaining from the original joint and survivorship account. See In re Estate of Lilley, 2006 Ohio 5510, P22-P23 (Ohio Ct. App. 2006). 40. The Warren County Probate Court further made a factual finding that, shortly prior to the maturity date of CD 4591, Pamela Lilley wrote a memo to Marion's guardian suggesting that the guardian ask First National Bank of Lebanon not to remind Stephen R. Lilley of the CD's maturity. In that memo, Pamela Lilley further suggested that the guardian redeem the CD as soon as it matured. The record shows that the guardian redeemed the CD on the day of its maturity, and placed all of the funds in accounts to which Stephen R. Lilley did not have access. 41. As to the other $40,000 withdrawn by Marion G. Lilley's guardian from

8 CD account 4591 and spent for Marion G. Lilley's personal care, the court found, as previously stated, that "there were other non-survivorship funds in the Marion G. Lilley guardianship which should have been used first by the guardian for the expenses of the ward." 42. The Twelfth District Court of Appeals found that Stephen R. Lilley was entitled to the entire $ 100,000 originally in CD account See In re Estate of Lilley, 2006 Ohio 5510, P22-P23 (Ohio Ct. App. 2006). 43. Defendants Dunlap and Hedges have refused to return the funds which they have received in the Estate of Marion G. Lilley that were specifically provided for and became his property at the demise of Marion G. Lilley. 44. A mandatory duty to recover the funds due Plaintiff Stephen R. Lilley is imposed by the position of the Defendants Dunlap and Hedges by reason of their statutory conduct as co-administrators, who would have held such funds in trust for the benefit of Plaintiff Stephen R. Lilley. 45. The refusal of Defendants Dunlap and Hedges deliver the funds received from the proceeds of the annuity plan that were purchased with the funds of CD 4591 constitutes a violation of a duty that is specifically enjoined. 46. Plaintiff Stephen R. Lilley has no plain and adequate remedy in the ordinary course of law. WHEREFORE, Plaintiff Stephen R, Lilley, hereby respectfully requests that this Court enter judgment in his favor and against all defendants as follows:

9 1. AN AWARD against defendants, jointly and severally, for plaintiff s damages in the first and second causes of action herein, along with interest and costs thereon. 2. AN ORDER that all money and property converted and misappropriated by defendants, all proceeds thereof, be impressed with a constructive trust in favor of plaintiff. 3. AN AWARD against defendants, jointly and severally, of punitive damages and exemplary damages of $1,000, The Plaintiff prays that a writ of mandamus be issued to Defendants Dunlap and Hedges recover and distribute the monies owed to Plaintiff Stephen R. Lilley under their powers and duties of the administration of the Estate of Marion G. Lilley. 5. AN AWARD against defendants, jointly and severally, for judgment of fraudulent conduct in an amount in excess of $1,000, Plaintiff further prays that this Court grant to its any and all further relief, equitable and at law, to which it may be entitled as found to be fair, equitable and appropriate. Respectfully submitted, F. HARRISON GREEN CO., L.P.A. F. Harrison Green, Trial Attorney for Plaintiff Stephen R. Lilley Ohio Supreme Court Reg. # Executive Park, Suite Executive Park Drive

10 Cincinnati, Ohio (513) FAX (513) JURY DEMAND Plaintiff hereby demands that this matter be tried before a jury of his peers. F. Harrison Green, Trial Attorney for Plaintiff Stephen R. Lilley

11 STATE OF OHIO } } SS: COUNTY OF HAMILTON } VERIFICATION I, Stephen R. Lilley, have read the foregoing Complaint against Brenda N. Dunlap and Jackson Hedges. I hereby certify that the above stated facts are true and accurate to the best of my knowledge. Sworn to and Subscribed Before me this the day Of November STEPHEN R. LILLEY Notary Public