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Gerald Dibert v. Cynthia Sue Carpenter

November 4, 2011

GERALD DIBERT
APPELLANT/CROSS-APPELLEE PLAINTIFF
v.
CYNTHIA SUE CARPENTER, ET AL.
APPELLEE/CROSS-APPELLANT DEFENDANT



(Civil Appeal from Trustee, Common Pleas Court) Trial Court Case No. 2008-CV-01

The opinion of the court was delivered by: Fain, J.

Cite as Dibert v. Carpenter,

OPINION

{¶1} Plaintiff-appellant Gerald Dibert appeals from a summary judgment rendered against him on his claim that he was fraudulently induced to transfer real property from one trust in which he was a co-trustee and had an interest as a beneficiary to another trust in which he had an interest as a beneficiary, but was not a co-trustee. He contends that the Champaign County Probate Court erred in determining that the claim was barred by the applicable statute of limitations.

{¶2} Defendant-appellee and cross-appellant Cynthia Carpenter contends that the probate court erred by denying her motion for partial summary judgment with regard to Dibert's claims for conversion. She contends that there is no genuine issue of material fact with regard to these claims.

{¶3} We conclude that the probate court was correct in its determination that the claim for fraud is barred by R.C. 2305.09. We further find that Carpenter's claim must be dismissed for lack of a final appealable order. Accordingly, the judgment of the probate court is affirmed.

I

{¶4} In 1975, Gerald Pickering conveyed property in Champaign County to his daughter and son-in-law, Jocelyn and Kenneth Dibert. Pickering retained a life estate in the property. In 1980, Pickering transferred his life estate interest to the Diberts in exchange for a note, secured by a mortgage, in the amount of $271,671.33.

{¶5} A month later, Pickering established a trust (the "Pickering Trust") designating himself as income beneficiary during his lifetime. He funded the trust by assigning the note and mortgage to the trust. Pursuant to the terms of the trust, and an amendment to the trust, the income from the trust was designated to go to his wife, Lucille, upon Pickering's death. When Lucille died, the trust designated Jocelyn and Kenneth Dibert as the income beneficiaries. When both Lucille and the Diberts died, the trust corpus was to be distributed to Pickering's grandchildren, Gerald Dibert and Cynthia Dibert Carpenter. Pickering died in 1981.

{¶6} Jocelyn Dibert died in 1989. Kenneth Dibert remarried. On March 12, 1991, Kenneth created a trust, designated as the Dibert Trust. It is unclear whether the trust instrument was prepared by attorney Roger Watson, attorney John Scouten, or both. The Dibert Trust was funded with the property and life estate that Pickering had conveyed to the Diberts, and which was still subject to the mortgage lien. Kenneth was designated as income beneficiary during his lifetime. His second wife, Amelia Jane, was to be designated as income beneficiary upon his death. Upon the death of the second wife, Dibert's children, Gerald and Cynthia were to share equally in the trust. Amelia Jane was appointed as trustee. If Amelia Jane died, or no longer was able to serve as trustee, the trust appointed Gerald and Cynthia to serve as co-trustees.

{¶7} The Dibert Trust contained the following language, relevant to this appeal:

{¶8} " * * * the part for Donor's son, GERALD J. DIBERT, shall include: Donor's farm chattels (including grain, livestock, etc.) and Donor's farm real estate. In the event that the value of the afore-described property to be included in GERALD J. DIBERT'S part exceeds the value of his fifty percent (50%) overall distribution, then GERALD J. DIBERT shall have the option to purchase all of the remainder of such property having a value in excess of that which is placed in his trust, at the value of such property as established for Ohio Estate Tax purposes, provided that this option to purchase must be exercised within a period of ninety (90) days from the date of Donor's death."

{¶9} On April 15, 1991, Kermit Russell was appointed as successor trustee to the Pickering Trust. Kenneth Dibert died in October, 1993. According to Gerald Dibert's deposition testimony, within ninety days of his father's death, in early 1994, he attempted to exercise his right to purchase option but was told by attorney Roger Watson that he could not do so because the property had been placed into "a trust."

{¶10} On December 13, 1996, attorney Allen Maurice, as attorney for Kermit Russell, successor trustee to the Pickering Trust, sent a letter to Gerald Dibert and Cynthia Carpenter. The letter stated:

{¶11} "As you know, I am attorney for Kermit Russell, as Successor Trustee of the Trust set up by your grandfather, Gerald B. Pickering, on September 26, 1980. One of the assets of the Trust is a promissory note dated August 22, 1980 from your parents to your grandfather in the amount of $271,671.33, with interest at the rate of 6% per year. This note is secured by a mortgage from your folks to your grandfather covering all of your parents' farmland. There remains owing on this note and mortgage an amount in excess of $211,000.00.

{ΒΆ12} "Under the terms of your grandfather's Trust, all of the income from the assets of the Trust were to be paid to Lucille Pickering, surviving spouse of your grandfather. As I have explained to both of you, all payments to Mrs. Pickering were suspended during the period of time that payments were being made on the federal estate tax that was assessed in your grandfather's estate. Under the terms of the Trust, ...


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