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Wynveen v. Corsaro

Court of Appeals of Ohio, Eighth District, Cuyahoga

December 21, 2017

BRADLEY A. WYNVEEN PLAINTIFF-APPELLEE
v.
JOSEPH G. CORSARO DEFENDANT-APPELLANT

         Civil Appeal from the Cuyahoga County Court of Common Pleas Probate Division Case No. 2016-ADV-217089

          ATTORNEY FOR APPELLANT Steven B. Beranek.

          ATTORNEYS FOR APPELLEES For Bradley A. Wynveen, Adam M. Fried Holly M. Wilson Reminger Co., L.P.A.

          For Christine Wynveen, Natural Guardian of Kelly A. Wynveen, and Christine Wynveen, individually, Douglas A. Dipalma Cavitch, Familo & Durkin Co., L.P.A.

          Guardian Ad Litem for Kelly A. Wynveen Michael R. Gareau, Jr.

          For Joseph G. Corsaro, Executor of the Estate of Richard A. Wynveen Shane A. Lawson Monica A. Sansalone Gallagher Sharp, L.L.P.

          For Joseph G. Corsaro, Trustee of the Bradley A. Wynveen Irrevocable Trust Shane A. Lawson Gallagher Sharp, L.L.P.

          For Ohio Attorney General's Office Mike DeWine Ohio Attorney General Todd K. Deboe Assistant Attorney General.

          For Natalie L. Wynveen Egidijus K. Marcinkevicius A. Sirvaitis & Associates.

          BEFORE: Boyle, J., E.T. Gallagher, P.J., and Blackmon, J.

          JOURNAL ENTRY AND OPINION

          MARY J. BOYLE, JUDGE.

         {¶1} Defendant-appellant, Joseph G. Corsaro, appeals from the trial court's order disqualifying his counsel, Attorney Steven B. Beranek, in relation to his counterclaim against plaintiff-appellee, Bradley A. Wynveen ("Bradley"). He raises one assignment of error for our review:

Did the Trial Court abuse its discretion when it disqualified Attorney Steven Beranek from continuing to represent Joseph G. Corsaro, as Trustee of the Bradley A. Wynveen Irrevocable Trust, with regard to the counterclaim filed in the action below?

         {¶2} For the reasons that follow, we affirm.

         I. Procedural History and Factual Background

         A. Corsaro & Associates' Prior Representations of the Wynveen Family

         {¶3} Corsaro is the founder and senior managing partner of Corsaro & Associates Co., L.P.A. and has been a practicing attorney, specializing in federal tax law, for over 30 years. One of Corsaro's clients was Dr. Richard A. Wynveen ("Dr. Wynveen"), who Corsaro represented in numerous matters and dealings for over 20 years. During his representations, Corsaro helped Dr. Wynveen establish the Richard A. Wynveen Revocable Trust ("RAW"), the Bradley A. Wynveen Irrevocable Trust ("BAW Trust"), and the Jeffrey C. Wynveen Irrevocable Trust ("JCW Trust"), organize numerous business entities, and plan his estate.

         {¶4} In addition to his services for Dr. Wynveen, Corsaro, as well as other members of Corsaro & Associates, offered legal assistance to Bradley, providing estate planning and representation for matters concerning property owned by Bradley and the BAW Trust. Further, attorneys from Corsaro & Associates helped organize, establish, and continue to maintain the Wynveen Family Foundation, preparing the foundation's tax returns. Bradley was designated as one of the trustees for the foundation and was expected to receive money from the foundation at some unspecified point in the future. Also, through August 2015, the firm provided legal services for Gainwell Limited Partnership, of which Bradley is part owner.

         {¶5} On April 1, 2013, Dr. Wynveen passed away and was survived by his two sons, Bradley and Jeffrey C. Wynveen ("Jeffrey). Two and one-half months later, Jeffrey also passed away. Prior to his passing, Dr. Wynveen appointed Corsaro as trustee of the RAW, BAW, and JCW trusts. In addition, according to the terms of Dr. Wynveen's will, Corsaro was named the executor of Dr. Wynveen's estate.

         B. The Current Lawsuit and Counterclaim

         {¶6} As part of his duties as executor of Dr. Wynveen's estate, Corsaro was responsible for paying $2, 000, 000 of estate tax due upon Dr. Wynveen's death. To do so, Corsaro decided to convert and collect assets owned by the estate, including debts owed by Bradley personally and as a partner in Gainwell Limited Partnership. Specifically, the debts allegedly included (1) a $100, 000 loan (plus interest) from Dr. Wynveen to Bradley; (2) $338, 000 in estate taxes derived from loans from Dr. Wynveen's estate to Bradley for the purchase of real property; and (3) Bradley's share of debt owed to the estate by Gainwell Limited Partnership. Bradley refused to pay those debts, however, disputing that he was responsible for them. As a result, Corsaro, the trustee of the BAW Trust, used funds from the BAW Trust to pay off the debts owed to the estate.

         {¶7} Subsequently, on June 15, 2016, Bradley filed a complaint in the court of common pleas, probate division, against a number of defendants, including Corsaro, who was sued individually, as executor of the estate of Richard A. Wynveen, and as trustee of both the RAW and BAW trusts. The complaint also identified the Wynveen Family Foundation as a defendant.

         {¶8} Bradley set forth six counts in his complaint, which were related to the administration of the BAW trust, RAW trust, Richard A. Wynveen's estate, and other business interests related to those trusts. Among other relief, the complaint sought the removal of Corsaro as trustee for the RAW and BAW trusts, trust and estate accountings, disgorgement of excessive attorney fees billed by Corsaro & Associates and fiduciary fees, surcharges, damages, and attorney fees.

         {¶9} On September 14, 2016, Corsaro, in all of his capacities, filed an answer as well as a counterclaim against Bradley, seeking recovery of debts owed by Bradley to the BAW trust and Richard A. Wynveen's estate. Attorney Beranek, who works for Corsaro's law firm, Corsaro & Associates, represented Corsaro on his counterclaim and as trustee of the BAW trust. Attorney Beranek also filed a notice of appearance on behalf of the Wynveen Family Foundation; however, Attorney Beranek later filed a motion to withdraw as counsel for the foundation. Corsaro retained separate counsel to defend himself against the counts alleged in Bradley's complaint.

         {¶10} On December 2, 2016, Bradley filed a motion to disqualify Attorney Beranek based on Corsaro & Associates' prior representations of Bradley and his family members. On February 13, 2017, the probate court, without a hearing, granted Bradley's motion to disqualify Attorney Beranek. In its judgment entry ...


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