Court of Appeals of Ohio, Eighth District, Cuyahoga
Appeal from the Cuyahoga County Court of Common Pleas Probate
Division Case No. 2014 ADV 200391
ATTORNEYS FOR APPELLANT Kevin G. Robertson Kendall Kash Baker
& Hostetler, L.L.P. Terry Brennan Baker & Hostetler,
L.L.P. Gregory G. Guice Jonathan Krol Franklin C. Malemud
Reminger Co., L.P.A. Adriann S. McGee Reminger Co., L.P.A.
ATTORNEYS FOR APPELLEES For Kevan Millstein, et al. Fred N.
Carmen Steven A. Friedman Damond R. Mace Squire Patton Boggs
(US) L.L.P. Alana Millstein, pro se Alec Millstein, pro se
Ethan Millstein, pro se Bernard Millstein, pro se Dianne F.
Millstein, pro se Joshua Millstein.
BEFORE: Boyle, P.J., S. Gallagher, J., and Laster Mays, J.
JOURNAL ENTRY AND OPINION
J. BOYLE, P.J.
Plaintiff-appellant, Norman Millstein, appeals from a
judgment of the Cuyahoga County Court of Common Pleas,
Probate Division, granting summary judgment to
defendants-appellees, Norman's son, Kevan Millstein, as
trustee of the Kevan Millstein Trust ("KMT") and
the Al-Jo Trust ("AJT"), as well as the two trusts.
Norman raises one assignment of error for our review:
The trial court erred by granting Defendant-Appellee Kevan
Millstein's motion for summary judgment on claim one, for
an accounting of the Kevan-Millstein Trust, and claim three,
for an accounting of the Al-Jo Trust, of Plaintiff-Appellant
Norman Millstein's Amended Complaint.
Finding no merit to his appeal, we affirm.
Procedural History and Factual Background
In his amended complaint filed in September 2014, Norman
sought a "fiduciary accounting" of the KMT and AJT
from 1997 to the present (Counts 1 and 3), and a declaratory
judgment that Bernard Millstein (Norman's brother) had no
power as a trust advisor under the KMT because his power was
"illusory and void ab initio" (Count 2).
Norman established two irrevocable gift trusts for the
benefit of his children and their successors: the AJT in 1987
and the KMT in 1988. When he did so, he was the grantor and
trustee of both trusts. In 1997, however, Norman transferred
control of both trusts to Kevan when he resigned as trustee
of the KMT and AJT and made Kevan the sole trustee of both
Norman alleged that Kevan's administration of the KMT was
inconsistent with Norman's intentions that he made clear
in a 1988 memorandum ("the 1988 memo"), which
Norman authored when he was both the grantor and trustee of
the KMT (although in a somewhat circular argument, Norman
asserted that he had no recollection of writing or reading
the 1988 memo and alleged that Kevan was using it against
him). Norman claimed that Kevan had a fiduciary duty to
consider Norman's intentions that were set forth in the
memo, "including the prospect of offsetting income
attributable to Norman, when making trust administration
Norman further alleged in the complaint that both trusts
"pass income to Norman, " making it financially
onerous to him. Norman asserted that he was entitled to a
"fiduciary accounting" because he "has been
saddled with millions of dollars of income tax
liability" due to "the administration and
activities" of the KMT. Norman further claimed that
under the KMT, he was entitled to "at least annually a
full financial report."
In December 2014, Kevan moved for summary judgment on
Norman's complaint, arguing that Norman was not entitled
to a financial accounting of the trusts and that if he ever
was entitled to an annual full financial report per the
trusts, he had released that right when he entered into an
agreement with Kevan in 2005. Kevan further argued that
Norman's declaratory judgment claim regarding Bernard
(Count 2) had no merit. In May 2015, the probate court agreed
with Kevan's argument with respect to Bernard, namely,
that Bernard had been a trust advisor for the KMT since its
inception. Norman did not appeal this decision and, thus,
Count 2 is not part of the present appeal.
Subsequently, Norman's attorney was disqualified from the
case due to a conflict. Norman later obtained new counsel,
who filed an opposition to Kevan's remaining arguments in
his summary judgment motion that were related to Counts 1 and
3 of Norman's complaint. In August 2017, the probate
court granted summary judgment to Kevan. It is from this
judgment that Norman appeals.
Summary Judgment Standard
We review an appeal from summary judgment under a de novo
standard. Baiko v. Mays, 140 Ohio App.3d 1, 10, 746
N.E.2d 618 (8th Dist.2000). Accordingly, we afford no
deference to the trial court's decision and independently
review the record to determine whether summary judgment is
appropriate. N.E. Ohio Apt. Assn. v. Cuyahoga Cty. Bd. of
Commrs., 121 Ohio App.3d 188, 192, 699 N.E.2d 534 (8th
Civ.R. 56(C) provides that before summary judgment may be
granted, a 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, and (3) it
appears from the evidence that reasonable minds can come to
but one conclusion, and viewing the evidence most strongly in
favor of the nonmoving party, that conclusion is adverse to
the nonmoving party. State ex rel. Duganitz v. Ohio Adult
Parole Auth., 77 Ohio St.3d 190, 191, 672 N.E.2d 654
The moving party carries an initial burden of setting forth
specific facts that demonstrate his or her entitlement to
summary judgment. Dresher v. Burt, 75 Ohio St.3d
280, 292-293, 662 N.E.2d 264 (1996). If the movant fails to
meet this burden, summary judgment is not appropriate, but if
the movant does meet this burden, summary judgment will be