Scanlon v. Scanlon ( 2012 )

[Cite as Scanlon v. Scanlon, 2012-Ohio-2317.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 97739
JOHN J. SCANLON, ET AL.
PLAINTIFFS-APPELLANTS
vs.
PATTI C. SCANLON, ET AL.
DEFENDANTS-APPELLEES
JUDGMENT:
DISMISSED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CV-659632
BEFORE: Celebrezze, P.J., Sweeney, J., and E. Gallagher, J.
RELEASED AND JOURNALIZED: May 24, 2012
ATTORNEYS FOR APPELLANTS
For John J. Scanlon and Neil J. O’Donnell, III
Ryan P. Nowlin
David M. Lenz
James D. Vail
Schneider, Smeltz, Ranney & LaFond, P.L.L.
1111 Superior Avenue
Suite 1000
Cleveland, Ohio 44114
FOR APPELLEES
Attorneys for Patti C. Scanlon
Dennis R. Rose
Dipali Parikh
Hahn Loeser & Parks, L.L.P.
200 Public Square
Suite 2800
Cleveland, Ohio 44114
Attorney for Brian Scanlon
Fred W. Friend
2619 Edgerton Road
University Heights, Ohio 44118
Colleen Adams, pro se
4330 Peartree Lane, #1
Hemet, California 92544
Kevin Allen, pro se
25 Martin
Hanover Township, Pennsylvania 18706
-continued-
Toby Allen, pro se
11923 Cyclops
Norwalk, California 90650
Tonya Allen, pro se
260 Market Street
Pittston Township, Pennsylvania 18640
Carla Callahan, pro se
3115 Stoney Ridge Road
Avon, Ohio 44011
Annette Hart, pro se
11923 Cyclops
Norwalk, California 90650
Kathy Hoff, pro se
5797 Overlook Way
North Ridgeville, Ohio 44039
Kerrie Japel, pro se
3147 Stoney Ridge Road
Avon, Ohio 44011
Mary Cecile O’Donnell, pro se
2391 Wagar Road
Rocky River, Ohio 44116
Neil O’Donnell, pro se
2791 Wagar Road
Rocky River, Ohio 44116
Mary Pickett, pro se
3132 Killingworth Lane
Twinsburg, Ohio 44087
-continued-
Charles Scanlon, pro se
11207 Peony Lane
Cleveland, Ohio 44111
Michael Scanlon, pro se
1505 McLean Corner Lane
McLean, Virginia 22101
Michael Scanlon, pro se
11207 Peony Avenue
Cleveland, Ohio 44111
Michael Scanlon, pro se
14613 Orchard Park
Cleveland, Ohio 44111
Patrick Daniel Scanlon, pro se
122 Stanley Place
LaPlace, Louisiana 70068
Patrick Scanlon, pro se
2361 Hidden Lake Drive
Palm Harbor, Florida 34683
Daniel Thompson, pro se
127 Cobblestone Way
Novato, California 94945
Delgar Patrick Thompson, pro se
23500 Peartree Lane
Hemet, California 92544
Timothy Thompson, pro se
631 A. So. Glassell
Orange, California 92865
Mary Kathleen Wilcox, pro se
3 Coventry Drive
Haines City, Florida 33844
FRANK D. CELEBREZZE, JR., P.J.:
{¶1} Appellants, several remainder beneficiaries of the Thomas P. Scanlon Family
Trust, bring the instant appeal following a grant of summary judgment in favor of Patti
Scanlon, executor of the estate of Gertrude Scanlon. The remainder beneficiaries filed
suit seeking the return of trust assets they alleged were wrongfully removed. This court,
however, is without jurisdiction to decide the matter because there is no final, appealable
order in this case.
{¶2} Thomas P. Scanlon established a pour-over trust, which would receive
substantial assets at his death. The trust was named the Thomas P. Scanlon Family Trust
and was established on October 25, 1990. Thomas P. Scanlon died on February 19,
2005, and his wife, Gertrude Scanlon, became trustee and sole present-interest
beneficiary. The trust also named several remainder beneficiaries and specified a
percentage of the trust assets they should receive upon Gertrude’s death. These
beneficiaries included Michael T. Scanlon, John J. Scanlon, Cecile O’Donnell, other
relatives of Thomas P. Scanlon, a number of children of these individuals, and Gertrude’s
son from a previous relationship.
{¶3} Gertrude had withdrawn the entire trust principal by the time of her death on
September 25, 2007, and the assets formerly held by the trust were divided as specified by
her estate documents.
{¶4} Upon discovering that the trust was empty, John J. Scanlon and Cecile
O’Donnell filed suit on May 15, 2008, requesting the return of trust assets from
Gertrude’s estate and for an accounting. Patti Scanlon, Gertrude’s executrix, filed an
answer and motion for summary judgment. Following the submission of dispositive
motions, Patrick Scanlon, the son of now-deceased Michael T. Scanlon, sought leave to
file a cross-claim against Patti as executrix. The trial court granted leave, and Patrick’s
cross-claim was accepted.
{¶5} Patti 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. This request for leave was granted
on the same day the court granted her motion for summary judgment. After giving
reasons for its decision, the trial court’s journal entry states “Defendant Patti C.
Scanlon’s, as executrix of the estate of Gertrude I. Scanlon, deceased, motion for
summary judgment granted.”
{¶6} This court’s jurisdiction is limited to reviewing final, appealable orders.
Section 3(B)(2), Article IV of the Ohio Constitution.
A final order “is one disposing of the whole case or some separate and
distinct branch thereof.” Lantsberry v. Tilley Lamp Co., 27 Ohio St.2d
303, 306, 272 N.E.2d 127 (1971). A trial court’s order is final and
appealable only if it satisfies the requirements of R.C. 2505.02 and, if
applicable, Civ.R. 54(B). Braelinn Green Condominium Unit Owner’s
Assn. v. Italia Homes, Inc., 10th Dist. No. 09AP-1144, 2010-Ohio-2371, ¶
7, citing Denham v. New Carlisle, 86 Ohio St.3d 594, 596, 716 N.E.2d 184(1999).
Relevant here, Civ.R. 54(B) provides that
[w]hen more than one claim for relief is presented in an action whether as a
claim, counterclaim, cross-claim, or third-party claim, and whether arising
out of the same or separate transactions, or when multiple parties are
involved, the court may enter final judgment as to one or more but fewer
than all of the claims or parties only upon an express determination that
there is no just reason for delay.
{¶7} The journal entry disposing of this case does not address Patrick’s
cross-claim. No motion for summary judgment was pending on Patrick’s cross-claim
because it was filed after Patti’s motion for summary judgment was submitted.
Therefore, the trial court’s order granting summary judgment cannot be construed to
apply to Patrick’s cross-claim.
{¶8} The order appealed does not dispose of all claims in the case or otherwise
note why there should be no just reason for delay. Therefore, this court lacks a final,
appealable order from which jurisdiction flows. Whitaker-Merrell Co. v. Geupel Const.
Co., 29 Ohio St.2d 184, 186, 280 N.E.2d 922 (1972).
{¶9} Accordingly, the appeal is dismissed.
It is ordered that appellees recover of appellants costs herein taxed.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
FRANK D. CELEBREZZE, JR., PRESIDING JUDGE
JAMES J. SWEENEY, J., and
EILEEN A. GALLAGHER, J., CONCUR