Millstein v. Millstein

          Civil 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

          MARY J. BOYLE, P.J.

         {¶1} 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.

         {¶2} Finding no merit to his appeal, we affirm.

         I. Procedural History and Factual Background

         {¶3} 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).

         {¶4} 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 trusts.^[1]

         {¶5} 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 decisions."

         {¶6} 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."

         {¶7} 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.

         {¶8} 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.

         II. Summary Judgment Standard

         {¶9} 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 Dist.1997).

         {¶10} 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 (1996).

         {¶11} 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 appropriate ...