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Scanlon v. Scanlon

Court of Appeals of Ohio, Eighth District

June 27, 2013

JOHN J. SCANLON, ET AL. PLAINTIFFS-APPELLANTS
v.
PATTI C. SCANLON, ET AL. DEFENDANTS-APPELLEES

Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-659632

ATTORNEYS FOR APPELLANTS Ryan P. Nowlin David M. Lenz James D. Vail Schneider, Smeltz, Ranney & LaFond.

ATTORNEYS FOR APPELLEES: For Patti C. Scanlon Dennis R. Rose DiPali Parikh Hahn, Loeser & Parks, L.L.P.

For Brian T. Scanlon Fred W. Friend.

APPELLEE/CROSS-APPELLANT Patrick Daniel Scanlon, pro se.

BEFORE: Kilbane, J., Stewart, A.J., and Boyle, J.

JOURNAL ENTRY AND OPINION

MARY EILEEN KILBANE, JUDGE.

{¶1} This consolidated appeal arises from the trial court's decision granting summary judgment in favor of defendants-appellees, Parti C. Scanlon ("Parti"), as executor of the estate of Gertrude I. Scanlon ("Gertrude"), and Brian T. Scanlon ("Brian"). In Case No. 99028, plaintiffs-appellants, John J. Scanlon ("John") and Neil O'Donnell, III, as executor of the estate of Cecile O'Donnell ("Cecile") (collectively referred to as "plaintiffs"), appeal the trial court's decision granting summary judgment in favor of Patti and Brian. [1] In Case No. 99052, defendant-cross-claimant-appellee/appellant, Patrick Daniel Scanlon ("Patrick"), pro se, also appeals the trial court's decision granting summary judgment in favor of Patti and Brian. For the reasons set forth below, we affirm.

{¶2} In October 1990, Thomas P. Scanlon ("Thomas"), established the Thomas P. Scanlon Family Trust ("trust"), with Thomas as the donor and trustee. Thomas died in February 2005. Following his death, Thomas's wife for over 56 years, Gertrude, became the sole trustee and sole beneficiary of the trust. The trust also named several contingent remainder beneficiaries and specified a percentage they would receive from the remaining principal upon Gertrude's death. These beneficiaries included Thomas's siblings, Michael T. Scanlon, John J. Scanlon, and Cecile O'Donnell; children of Thomas's siblings; and Gertrude's son from a previous marriage. Upon Gertrude's death, the remainder of the trust was to revert to the contingent remainder beneficiaries listed in the trust, with Cecile as the next surviving successor trustee. However, by the time of her death in September 2007, Gertrude had withdrawn the entire trust principal, transferring all of the trust assets to herself. The assets formerly held by the trust were divided as set forth by her will.

{¶ 3} After discovering that the trust was depleted, John and Cecile, the surviving brother and sister of Thomas, filed suit against Parti, as the executor of Gertrude's estate, Brian, and the other contingent remainder beneficiaries of the trust, including Patrick, in May 2008. The complaint contained one cause of action, alleging that, as trustee, Gertrude breached her fiduciary duty to the beneficiaries of the trust by failing to make written requests to herself before removing the trust's principal and distributing it to herself. At the time Gertrude became trustee, the value of the trust was $782, 488.30. The complaint further alleged that the trust assets were a part of Gertrude's probate estate. Gertrude's last will and testament left her entire probate estate to Parti and Brian.[2] The complaint sought an accounting of the trust transactions during the period in which Gertrude was the trustee and the return by Parti of all property distributed to Gertrude in violation of her fiduciary duties. Parti and Brian each filed an answer and motion for summary judgment.

{¶ 4} In January 2009, Patrick sought leave from the trial court and filed a cross-claim against Parti in her capacity as executor of Gertrude's estate, alleging the same claims brought by John and Cecile, that Gertrude breached her fiduciary duty as trustee.[3] Patrick also filed the same pleadings and motions in probate court as he did in the general division of the common pleas court, along with a motion contesting Gertrude's will. See In re Estate of Gertrude Scanlon, 8th Dist. No. 95264, 2011-Ohio-1097. In May 2010, the probate court concluded that Patrick lacked standing to contest Gertrude's will because he was not a necessary party. He was not a blood relative of Gertrude, thus, he would not inherit anything from her by intestate succession. The court also found that Patrick's action contesting the validity of the will, filed two years after Gertrude's will was admitted to probate, was filed too late. As for Patrick's other claims, the probate court concluded that Patrick commenced a civil action in the general division of the court of common pleas on identical issues. Therefore, the probate court lacked jurisdiction to consider the same issues. Id. at ¶ 8-9.

{¶ 5} On appeal, we affirmed the probate court's judgment:

Although [Patrick] contends the trust funds in which he has an interest were wrongly taken by Gertrude and ultimately included as part of her estate, this remains to be proven. Thus, Patrick does not have an "immediate" interest in Gertrude's will and, therefore, lacks standing.

Id. at ¶ 13. We further found:

[B]ecause Patrick first raised his claims regarding the trust in the common pleas court the probate court was correct in concluding it did not have jurisdiction. * * * The probate court's resolution of Patrick's claims would interfere with the resolution of his claims presented in the general division, common pleas court. Mat 121.

{¶ 6} In the interim, in the general division of the common pleas court, Parti did not respond to Patrick's cross-claim in a timely manner and filed a late answer with a request for leave to file an answer in February 2010. This request for leave was granted on November 22, 2011, which was the same day the court granted Parti's motion for summary judgment against John and Cecile. In its decision, the trial court stated:

The court finds the subject trust granted Gertrude Scanlon, the trust's sole beneficiary and sole trustee, the right to withdraw principal to the complete exhaustion of the trust.
The court [further] finds Gertrude Scanlon, as sole beneficiary, was not required to provide written notice to herself, as sole trustee, because such action would constitute a "vain and unnecessary act." Defendant Parti C. Scanlon's, as executrix of the estate of Gertrude I. Scanlon, deceased, motion for summary judgment is therefore granted.

{¶ 7} Plaintiffs and Patrick each appealed from this decision in John Scanlon v. Patti Scanlon, 8th Dist. No. 97739, 2012-Ohio-2317, and John Scanlon v. Patti Scanlon, 8th Dist. No. 97724, 2012-Ohio-2514, respectively. We dismissed both appeals for lack of a final, appealable order, finding that the above journal entry did not address Patrick's cross-claim. After our dismissal, the trial court issued the following entry:

This court previously granted summary judgment in favor of Defendant Patti Scanlon, as executrix of the estate of Gertrude Scanlon, and against Plaintiffs John J. Scanlon and Cecile O'Donnell.
As the court of appeals indicated, the court failed to address Defendants Patrick J. Scanlon and Michael Scanlon's cross-claims made against the estate and Brian Scanlon.
The court finds the decision to grant summary judgment in favor of Parti C. Scanlon, as executrix of the estate of Gertrude Scanlon, is equally applicable to defendants' cross-claims.
Therefore, Defendant Parti C. Scanlon, executor's motion (filed 6/26/12) for summary judgment against cross-claimants Patrick Daniel Scanlon and Michael Scanlon's cross-claim, is granted. Likewise defendant Brian Scanlon's motion (filed 7/20/12) for summary judgment vs. Defendants and Cross-Claimants Patrick Daniel Scanlon and Michael Scanlon's cross-claim is granted.

No just reason for delay.

{¶ 8} It is from this order that plaintiffs now appeal and Patrick, pro se, now appeals, with plaintiffs raising two assignments of error and Patrick raising six assignments of error for review. For ease of discussion, we will address the assignments of error together and out of order, where appropriate.

Motion for Summary Judgment


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