In re Guardianship of Mull

[Cite as In re Guardianship of Mull, 2015-Ohio-5440.]
STATE OF OHIO, BELMONT COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
DAVID R. GIFFIN, AS TRUSTEE OF ) CASE NO. 15 BE 11
THE MARIE F. MULL REVOCABLE )
TRUST et al., )
)
PLAINTIFFS-APPELLEES, )
)
VS. ) OPINION
)
W. QUAY MULL II, et al, )
)
DEFENDANTS-APPELLANTS. )
CHARACTER OF PROCEEDINGS: Civil Appeal from the Probate Court of
Belmont County, Ohio
Case No. 12CV534
JUDGMENT: Affirmed.
JUDGES:
Hon. Carol Ann Robb
Hon. Cheryl L. Waite
Hon. Mary DeGenaro
Dated: December 17, 2015
[Cite as In re Guardianship of Mull, 2015-Ohio-5440.]
APPEARANCES:
For Plaintiff-Appellee: Atty. Stephen F. Ban
Metz, Lewis, Brodman, Must
O'Keefe, LLC
535 Smithfield Street, Suite 800
Pittsburgh, Pennsylvania 15222
Atty. Daniel R. Swetnam
Ice Miller, LLP
250 West Street, Suite 700
Columbus, Ohio 43215
Atty. Erik Schramm
Hanlon, Estadt, McCormick
& Schramm Co., LPA
46457 National Road West
St. Clairsville, Ohio 43950
Atty. Todd K. DeBoe
Asst. Atty. Gen., Office of the Ohio
Atty. Gen.
Charitable Law Section
150 E. Gay Street, 23rd Floor
Columbus, Ohio 43215-3130
Patricia Gibson, pro se
7008 Villa Maria Ct.
Austin, Texas 78759
Atty. Wade Harrison
4041 N. High Street
Suite 200
Columbus, Ohio 43214
For Defendant-Appellant: Atty. Charles Bean
Thornburg & Bean
113 West Main St.
P.O. Box 96
St. Clairsville, Ohio 43950
Atty. Richard A. Myser
Fregiato, Myser and Davies
320 Howard Street
Bridgeport, Ohio 43912
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Atty. David K. Liberati
Assistant Prosecuting Attorney
Belmont County, Ohio
Courthouse Annex No. 1
147-A West Main Street
St. Clairsville, Ohio 43950
Atty. Eric Costine
The Costine Law Firm
138 West Main Street
St. Clairsville, Ohio 43950
[Cite as In re Guardianship of Mull, 2015-Ohio-5440.]
ROBB, J.
{¶1} Defendants-Appellants Thoburn United Methodist Church, St. Clairsville
Public Library and the House of the Carpenter (“Charities”) appeal the decision of
Belmont County Probate Court denying their motion for summary judgment and
granting both Plaintiff-Appellee David R. Giffin, Trustee of the Marie F. Mull
Revocable Trust and Defendant-Appellee W. Quay Mull’s motions for summary
judgment. There are two issues in this case.
{¶2} The first is whether a properly executed amendment to an improperly
executed agreement validates the original improperly executed agreement.
Specifically, in this case there was agreement between husband and wife that their
wills and revocable trusts could not be modified upon the death of the first spouse
(“Family Agreement”). The Family Agreement was not executed in accordance with
Florida law. However, prior to the death of husband, the parties amended the Family
Agreement and properly executed that amendment. The amended Family
Agreement ratified and confirmed the original Family Agreement, except for the
specified changes in the amendment. The probate court determined, as a matter of
law, that the amendment republished the original Family Agreement and was binding.
{¶3} The second issue is whether the probate court abused its discretion in
failing to remove Appellee Giffin as trustee of Marie Mull’s trust. This issue raises
two questions. First, whether the probate court’s denial of a motion to remove is a
final appealable order that should have been appealed earlier. And second, whether
Appellants Charities had standing to seek removal.
{¶4} For the reasons expressed below, the probate court’s decisions are
hereby affirmed. The grant of summary judgment for Appellees Quay Mull and Giffin
is affirmed because the amendment incorporated the Family Agreement and was
binding. As for the motion to remove Appellee Giffin as trustee, the appeal of the trial
court’s order denying the motion was untimely.
Statement of the Facts
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{¶5} William and Marie Mull, during their marriage, accumulated significant
assets. Appellee Giffin was their financial advisor since 1983 or 1984. It appears his
advice helped in the accumulation of their wealth.
{¶6} In 1987, William and Marie decided to enter into a contract regarding
their estate planning and agreed to adopt similar revocable trusts. 10/1/87 Family
Agreement. The Family Agreement provided upon the death of the first dying
spouse, the assets of that dying spouse would transfer to surviving spouse’s
revocable trust. 10/1/87 Family Agreement ¶ C. Upon the death of the first spouse,
the Family Agreement could not be changed, modified or terminated. 10/1/87 Family
Agreement ¶ D. Also, upon the death of the first dying spouse, the survivor could not
revoke or modify their revocable trust. 10/1/87 Family Agreement ¶ 4.
{¶7} The Family Agreement was signed by William and Marie. However, it
was not witnessed or notarized.
{¶8} Both parties executed their revocable trusts that same day, October 1,
1987. Appellee Quay Mull (William’s son from a previous marriage) was the major
beneficiary (50%) of the trusts. Appellants Charities were not beneficiaries of these
trusts. Bill was named the trustee of his trust and Marie was named the trustee of
her trust.
{¶9} On September 13, 1993, William and Marie executed an Amendment to
the Family Agreement, dated October 1, 1987. In this Amendment, the parties
agreed to exempt any tangible personal property from the Family Agreement.
9/13/93 Amendment ¶ 1. The second paragraph of the Amendment states the
parties “ratify and confirm the Agreement of October 1, 1987, except as set forth
herein.”
{¶10} This agreement was signed by both William and Marie, witnessed by
two witnesses and accompanied by a “SELF-PROOF AFFIDAVIT” that was signed
witnessed, and notarized.
{¶11} William and Marie then executed a First Amendment to the Revocable
Trusts on September 13, 1993 (First Amendment). Beneficiaries were added to the
trusts; however, Appellee Quay Mull was still to receive 50%. Appellant Thoburn
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United Methodist Church was the only charity listed as a beneficiary in the First
Amendment.
{¶12} William Mull died September 26, 1997.
{¶13} After his death, Marie amended her trust two times, once on March 22,
2002 (Second Amendment) and once on November 3, 2011 (Third Amendment).
Both of these amendments excluded Appellee Quay Mull as a beneficiary. It appears
that Marie also excluded all of William’s family as beneficiaries. All of Appellants
Charities were named as beneficiaries in the Second Amendment. However, in the
Third Amendment only Appellants Thoburn United Methodist Church and St.
Clairsville Public Library were named as beneficiaries; Appellant House of the
Carpenter was not named as a beneficiary in that amendment.
{¶14} Appellee Giffin became the successor trustee of Marie’s revocable trust
on September 27, 2010. This was after Marie removed herself as trustee. Under the
1993, 2002, and 2011 amendments to the Trust, Giffin is named as successor
trustee.
{¶15} Marie was declared incompetent on July 25, 2012.
{¶16} It appears from the briefs and filings that Marie is still alive and
incompetent.
Statement of the Case
{¶17} In November 2012, Appellee Giffin, in his capacity as Trustee, filed a
complaint asking for the probate court to declare which trust of Marie Mull was
controlling and whether the Family Agreement was valid and enforceable. The
named defendants were the beneficiaries of the 1987 Trust, and the 1993, 2002, and
2011 Amendments to the Trust, which included Appellee Quay Mull and Appellants
Charities.1
1Other beneficiaries were named. However, they have either not participated in the proceedings below, or did
not file an appellate brief. The only parties to the appeal are Appellee Giffin, Appellee Quay Mull and Appellants
Charities.
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{¶18} Appellee Quay Mull and Appellants Charities filed answers to the
complaint. 1/2/13 St. Clairsville Library answer; 1/4/13 Quay Mull answer; 1/11/13
Thoburn United Methodist Church answer; 2/22/13 The House of the Carpenter
answer.
{¶19} Thereafter, Appellants Charities moved to remove Appellee Giffin as
trustee. 9/9/13 Motion. They claimed Appellee Giffin had a conflict of interest
because during his deposition he stated that he made personal commitments to
William that he would not permit Marie to remove Appellee Quay Mull as a
beneficiary of the trust. Also, they alleged Appellee Giffin had a conflict of interest
because Marie’s trust owns stock in Appellee Giffin’s company.
{¶20} Appellee Giffin filed a motion in opposition to his removal arguing that
there is no conflict of interest, he has not committed a “serious breach of trust,” and
Appellants Charities have no legal standing because one or two of the charities have
no interest in the trust. 10/3/13 Memo in Opposition to Remove Trustee.
{¶21} Appellants Charities filed a response and requested a hearing on the
matter. 10/15/13 Motion.
{¶22} A hearing occurred on October 18, 2013. Following the hearing, the
probate court found Appellants Charities had standing to raise the issue. However,
the probate court denied the request to remove Appellee Giffin as trustee. 10/23/13
J.E.
{¶23} The parties then filed their respective motions for summary judgment.
In their motions for summary judgment, Appellees Quay Mull and Giffin argued the
Family Agreement was validated by republication. 11/21/14 Quay Motion for
Summary Judgment; 11/24/14 Giffin Motion for Summary Judgment. Both asserted
the 1993 First Amended Trust is the controlling trust. Conversely, Appellants
Charities asserted the Family Agreement was void and could not be validated by
republication. 12/27/13 Charities Motion for Partial Summary Judgment; 11/20/14
Second Motion for Partial Summary Judgment.
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{¶24} The probate court held a hearing on the motions January 30, 2015. On
February 4, 2015, it held that Florida law was controlling because the Mulls were
residents of Florida when the 1987 and 1993 documents were executed. It found
that although the 1987 Family Agreement was not executed in accordance with
Florida law, it was validated when the parties amended the Family Agreement in
1993, properly executed the Amendment, and stated in the Amendment that the prior
Family Agreement was ratified and confirmed. 2/4/15. Accordingly, the probate court
granted summary judgment for Appellees Giffin and Quay Mull.
{¶25} Appellants Charities timely appealed the February 4, 2015 decision.
First Assignment of Error
“The court below erred in not holding the “1987 Side Agreement” [Family
Agreement] void since the Mulls were Florida residents and the same did not comply
with Florida law in that it was improperly executed.”
{¶26} This assignment of error raises two core issues. The first is what
choice of law applies to the Family Agreement. Is it Florida or Ohio law? Second, if
Florida law is applicable, what is the effect of the improperly executed Family
Agreement? Did the 1993 Amended Agreement render the Family Agreement
enforceable?
A. Choice-of-law
{¶27} Appellants Charities’ assert the Family Agreement was not properly
executed, must be deemed void, and cannot be ratified. This argument is premised
on the position that Florida law applies.
{¶28} Appellee Giffin concedes that if this court engages in a choice-of-law
analysis, Florida law most likely applies. He asserts, however, that a choice-of-law
analysis is only required if there is a conflict between Ohio and Florida law.
{¶29} Both of Appellee Giffin’s propositions are correct.
{¶30} The Family Agreement does not contain a choice-of-law provision. It
was executed in Ohio, but at the time of execution William and Marie Mull were
Florida residents.
{¶31} The Ohio Supreme Court has stated:
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In the absence of an effective choice of law by the parties, the contacts
to be taken into account to determine the law applicable to an issue
include:(a) the place of contracting,(b) the place of negotiation of the
contract,(c) the place of performance, (d) the location of the subject
matter of the contract, and (e) the domicile, residence, nationality, place
of incorporation and place of business of the parties.(Section 188 of 1
Restatement of the Law 2d, Conflict of Laws, adopted and applied.)
Gries Sports Enterprises, Inc. v. Modell, 15 Ohio St.3d 284, 473 N.E.2d 807 (1984),
paragraph 1 of the syllabus.
{¶32} In engaging in a choice-of-law analysis, Appellee Giffin correctly
indicates: 1) the record demonstrates that the 1987 estate plan was prepared in
Florida with the help of a Florida lawyer; 2) William and Marie Mull changed their
residence to Florida in 1987, and; 3) although the Family Agreement does not specify
the controlling law, the other estate plan documents indicate that Florida law controls.
{¶33} The above analysis, however, only must be undertaken when “[a]n
actual conflict between Ohio law and the law of another jurisdiction” exists. Glidden
Co. v. Lumbermens Mut. Cas. Co., 112 Ohio St.3d 470, 2006-Ohio-6553, 861 N.E.2d
109, paragraph 1 of the syllabus. Consequently, if the result under Ohio law would
be the same as the result under Florida law, we are not required to determine the
applicable law.
{¶34} Under Ohio law, an agreement to make a will or give a devise must be
in writing and signed by the maker or another person at the maker’s express
direction. R.C. 2107.04. The Family Agreement was in writing and was signed by
both William and Marie. Thus, it is valid under Ohio law.
{¶35} Florida law provides:
No agreement to make a will, to give a devise, not to revoke a will, not
to revoke a devise, not to make a will, or not to make a devise shall be
binding or enforceable unless the agreement is in writing and signed by
the agreeing party in the presence of two attesting witnesses. Such an
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agreement executed by a nonresident of Florida, either before or after
this law takes effect, is valid in this state if valid when executed under
the laws of the state or country where the agreement was executed,
whether or not the agreeing party is a Florida resident at the time of
death.
Fla. Stat. 732.701(1).
{¶36} As aforementioned, the Family Agreement was executed in Ohio and at
the time of execution William and Marie were Florida residents. This means the
second sentence of the statute is not applicable and the Family Agreement was
required to be signed “in the presence of two attesting witnesses.” The Family
Agreement did not comply with that requirement because it was not witnessed. Thus,
under Florida law the Family Agreement was not properly executed.
{¶37} Although Florida and Ohio differ on what is required for the execution of
the Family Agreement, there is no conflict between Ohio and Florida law, if Florida
law permits the Family Agreement to be ratified by the 1993 Amendment.
{¶38} This brings us to the second issue under this assignment of error.
B. What effect does the 1993 Amendment have on the
improperly executed Family Agreement?
{¶39} Appellants Charities assert the Family Agreement is void because it
was not properly executed and cannot be ratified. Appellees Giffin and Quay Mull
counter asserting the Family Agreement is not void ab initio and can be ratified.
{¶40} The parties’ arguments raise the question as to whether, under Florida
law, an improperly executed agreement to make a will or devise is void and incapable
of being ratified? Or is it voidable and capable of being ratified? The parties’
arguments focus on probate law and whether probate law permits an improperly
executed Family Agreement to be ratified by a subsequent agreement. We,
however, do not need to focus solely on probate law to resolve the issue presented.
General principles of contract law can apply in this instance.
{¶41} A Family Agreement is a contract and thus, general contract law is
applicable. In general, contracts are defined by the plain meaning of the terms in the
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contract. Emerald Pointe Prop. Owners' Ass'n v. Commercial Constr. Indus., Inc., 978
So.2d 873, 877 (Fla. 4th Dist.2008). Where a contract is unambiguous, the parties'
intent must be gleaned from “the four corners of the document.” Dows v. Nike, Inc.,
846 So.2d 595, 601 (Fla. 4th Dist.2003). The four corners of the contract may also
include a document that is incorporated by reference in the contract. Incorporation
occurs “if the contract specifically describes the document and expresses the parties'
intent to be bound by its terms.” Geico Gen. Ins. Co. v. Virtual Imaging Services,
Inc., 90 So.3d 321, 326 (Fla.App.2012), quoting Mgmt. Computer Controls, Inc. v.
Charles Perry Constr., Inc., 743 So.2d 627, 631 (Fla. 1st DCA 1999); see also OBS
Co. v. Pace Constr. Corp., 558 So.2d 404, 406 (Fla.1990) (“It is a generally accepted
rule of contract law that, where a writing expressly refers to and sufficiently describes
another document, that other document, or so much of it as is referred to, is to be
interpreted as part of the writing.”).
{¶42} Here, the evidence indicates the Family Agreement was incorporated
by reference in the 1993 Amendment and thus, became a part of the 1993 Amended
Agreement. The Family Agreement was executed on October 1, 1987 and is titled
“AGREEMENT.” The Amendment to the Family Agreement is titled “AMENDMENT
TO AGREEMENT.” This Amendment was executed on September 13, 1993. The
introductory paragraphs to the Amendment stated:
THIS IS AN AMENDMENT TO THAT CERTAIN AGREEMENT
between WILLIAM Q. MULL (“WILLIAM”) and MARIE F. MULL
(“MARIE”) dated October 1, 1987.
***
WHEREAS, the parties entered into an Agreement dated
October 1, 1987 regarding certain agreements with respect to their
estate planning; and
WHEREAS, the Agreement provides that it may be modified by a
written amendment executed by the parties; and
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WHEREAS, the parties desire to amend the Agreement as set
forth herein.
1993 Amended Agreement.
{¶43} The first paragraph of the amendment indicated what property was
exempt from the agreement to devise or will. The second paragraph of the 1993
Amended Agreement then stated, “The parties hereby ratify and confirm the
Agreement of October 1, 1987, except as set forth herein.” The 1993 Amended
Agreement was signed by both William and Marie and signed by two witnesses.
Attached to the 1993 Amended Agreement was a “Self-Proof Affidavit,” that was also
signed by William and Marie and the two witnesses. This “Self-Proof Affidavit” was
notarized.
{¶44} The statements in the 1993 Amended Agreement refer to the Family
Agreement, and confirmed and ratified the Family Agreement. The 1993 Amended
Agreement was properly executed. Therefore, the Family Agreement was
incorporated by reference in the 1993 Amended Agreement. This incorporation
made the Family Agreement enforceable.
{¶45} Furthermore, Florida statutory law is clear that an improperly executed
will can be saved by a properly executed codicil that ratifies the improperly executed
will.
{¶46} The parties, in asserting their respective positions as to whether
ratification can remedy the improperly executed Family Agreement, refer to two
cases from Florida Appellate Courts, Talmudical Academy of Baltimore v. Harris, 238
So.2d 161 (Fla.App.1970) and Donner v. Donner, 302 So.2d 452 (Fla.App.1974). In
both cases, the promise to bequest was made in other states and was not witnessed.
{¶47} In Talmudical, ratification was not discussed and the appellate court
affirmed the trial court’s dismissal of the portion of the complaint which sought to
enforce a promise to make a bequest. Talmudical at 162-163.
{¶48} In Donner, the agreement to bequeath was enforced despite the
witness deficiencies because the agreement had been litigated in previous suits (in
Alabama and in Florida) and in those initial suits the enforceability of the agreement
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was not raised. Donner at 454. Enforceability was not raised until a subsequent suit
in New York. In that suit, the deceased argued the agreement to bequeath did not
comply with Florida statute 731.051 because the agreement was not witnessed. Id.Florida Statute 731.051 is the predecessor to Florida Statute 732.701. Both statutes
require agreements to will or devise to be signed in the presence of two attesting
witnesses. The New York court held that the issue was barred by res judicata
because it was not raised in the previous suits. Id. at 454-456. Therefore, when the
deceased’s will was probated in Florida, and when the beneficiary of the agreement
to bequeath sued in Florida seeking enforcement of the agreement to bequeath, the
Florida court also relied on res judicata. Id. It held that the agreement to bequeath
was enforceable because the decedent had his day in court; “[t]he terms of the
separation agreements as incorporated in the Alabama decree, domesticated in
Florida, and accorded full faith and credit in New York are now binding upon the
decedent's estate.” Id. at 455. Ratification was not discussed in Donner.
{¶49} Although Donner and Talmudical do not indicate whether an improperly
executed agreement to will or devise can be ratified, both do indicate that
agreements to will or devise are part of Florida probate law:
Section 731.051 is a part of the Florida probate law. It does not deal
with the validity of an agreement but with the enforceability of the
agreement in the courts of this state. As such it is a part of the public
policy of the state dealing with the kind of claim against an estate that
will be allowed or enforced by the courts of the state. It is therefore
procedural in nature and is applicable to all actions such as the present
one brought in this state.
(Emphasis added.) Talmudical at 162. See also, Donner at 456.
{¶50} In Florida, execution of wills is governed by Statute 732.502. The
version in effect at the time the Family Agreement was executed and at the time the
Amended Agreement was executed, provided that every will must be in writing and
“executed” in the following manner. Florida Statute 732.502. It must be signed by
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the testator at the end and it must be signed in the presence of two attesting
witnesses who must sign the will in the presence of the testator and in the presence
of each other. Florida Statute 732.502(1)(a), (b), and (c). The statute further
provided that a codicil shall be “executed” with the same formalities as a will. Florida
Statute 732.502(4).
{¶51} Florida Statute 732.511 governs republication of a will by reexecution.
It states, “[i]f a will has been revoked or if it is invalid for any other reason, it may be
republished and made valid by its reexecution or the execution of a codicil
republishing it with the formalities required by this law for the execution of wills.”
Florida Statute 732.511 (Emphasis Added). This statute was in effect at the time the
Family Agreement was signed by William and Marie and at the time William and
Marie executed the 1993 Amended Agreement. Improper execution is a reason a will
would be deemed invalid. Therefore, it logically follows that based on Florida Statute
732.511, proper execution of a codicil that republishes the will constitutes proper
execution of the will that was previously improperly executed.
{¶52} Consequently, an agreement to make a will or devise under Florida
Statute 732.701 is part of probate law. Probate law allows for a properly executed
codicil to revive a revoked will or a will that would be considered invalid for any other
reason. It logically follows that an improperly executed agreement to make a will or
devise can be ratified by a properly executed amendment to the agreement.
{¶53} For all of the above reasons, we hold that the 1993 Amended
Agreement validated the Family Agreement.
C. First Assignment of Error Conclusion
{¶54} The first assignment of error lacks merit. The result under Florida law
and Ohio is the same, the Family Agreement is enforceable. Under Ohio law it was
enforceable upon execution because it was executed in accordance with R.C.
2107.04. Under Florida law, the 1993 Amended Agreement validated it. The trial
court’s conclusion that the Family Agreement is enforceable is affirmed.
Second Assignment of Error
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“The court below erred in not finding that the “1987 Side Agreement” was
revoked by the subsequent Amendments in 2002 and 2011 which were accepted by
David Giffin, the Trustee, and the 2011 Amendment was written by David Giffin.”
{¶55} This assignment of error addresses whether there is evidence that the
Family Agreement was revoked during William’s lifetime. Appellants Charities argue
the 2002 and 2011 Amendments to the Trust (Amendment 3 and 4), which occurred
after William’s death, are an indication that the Family Agreement was revoked. They
cite no case law to support this position.
{¶56} A contract to make a will may be irrevocable. Donner, 302 So.2d at
455. The Family Agreement, per its terms, became irrevocable upon the death of the
first spouse. During the lifetimes of both spouses, the Family Agreement could be
altered. The Agreement provided that it could be “terminated, modified or amended
by written consent of both William and Marie during their lifetime.” Family
Agreement. That provision was not modified in the 1993 Amended Agreement. No
evidence of written consent signed by both William and Marie was presented to the
probate court.
{¶57} Likewise, all evidence presented during discovery indicates the Family
Agreement was not revoked. Appellee Giffin sent a letter to William and Marie in
April 1997, approximately five months prior to William’s death. This letter outlined
some trust amendments that William and Marie were contemplating. Nothing in this
letter suggests that the Family Agreement was revoked.
{¶58} Furthermore, nothing in Appellee Giffin’s deposition testimony suggests
the Family Agreement was revoked. He testified at his deposition that he had a
discussion with Marie about her wishes to change the trust. Giffin Depo. 34. He told
her she could not because of the Family Agreement. Giffin Depo. 34-35. Her
response was that she did not care and she was going to change the trust. Giffin
Depo. 35. Appellee Giffin described the conversation as heated and avowed that he
informed her that the changes would not prevail if challenged by Appellee Quay Mull.
Giffin Depo. 35.
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{¶59} The mere fact that Marie amended the trust twice after William’s death
is not an indication, without more, that William and Marie had a written agreement to
terminate the Family Agreement. Marie’s act of amending the trust twice after
William’s death may have showed her intent to revoke the Family Agreement.
However, it does not evince that William during his lifetime, had an intent to revoke
the agreement. “Revocation or alteration of a will or trust by one party to an
agreement to devise or will does not release that party from his or her obligation
under the agreement to devise or will when the revocation or alteration was done in
secret or without notice to the other parties to an agreement to devise. Boyle v.
Schmitt, 602 So.2d 665, 667-68 (Fla.3d.App.1992). In Boyle, Blanche repudiated the
agreement to make a will during her lifetime and communicated that revocation both
to James, the other promisor, and to John, the third-party beneficiary. Id. Her acts in
that case was evidence of repudiation of the contract. In the matter at hand, there is
no evidence that the Family Agreement was repudiated in any manner, let alone in
the manner required by the Agreement.
{¶60} For those reasons, this assignment of error is meritless; there is no
evidence that the Family Agreement was revoked during William’s lifetime.
Third Assignment of Error
“The Court below erred in not finding that the Trustee and any Third-Party
Beneficiaries were estopped and/or waived and/or were guilty of laches in finding the
Amendments did not revoke the invalid 1987 Side Agreement.”
{¶61} There is only one paragraph in the combined argument for the first
three assignments of error that addresses the proposition raised in the third
assignment of error. That paragraph states:
Lastly, the fact that the Trustee, David Giffin, was involved with
all the amendments to Marie Mulls’ Revocable Trust and accepted them
as the successor trustee in 2010 and was the financial advisor to Marie
Mull since the 1980’s demonstrates a factual question that the 1987
Side Agreement was not only revoked, but also demonstrates that
estoppel, waiver and laches are a relevant and a factual issue is
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present in this case, which would not be subject to a summary
adjudication.
Appellant’s Brief at 19.
{¶62} Ohio Appellate Rule 16(A)(7) requires each assignment of error to be
supported by arguments “with citations to authorities, statutes and parts of the record
on which appellant relies.” Appellant’s argument for this assignment fails to discuss
and cite authority for the elements of estoppel, waiver and laches; there is no
argument how each of these theories applies to this case. Accordingly, there is no
compliance with Appellate Rule 16 and the argument can be rejected on that basis.
See Strama v. Allstate Ins., 7th Dist. No. 14BE8, 2015-Ohio-2590, ¶ 18-19
(Assignment of error refers to five claims, but arguments presented under
assignment of error only addresses three claims. We limited our review to only the
three claims argued.) However, in the interest of thoroughness we will do a cursory
review of the theories and potential application to the facts of this case.
A. Estoppel
{¶63} It is assumed Appellants Charities’ estoppel argument is based on
equitable estoppel, not promissory estoppel. We have previously explained:
“Equitable estoppel has been defined as ‘[t]he doctrine by which a
person may be precluded by his act or conduct, or silence when it is his
duty to speak, from asserting a right which he would otherwise have
had.’ Black's Law Dictionary (6th Ed. 1990) 538. * * * In Ohio, courts
have applied a four-factor test to determine whether the essential
elements of equitable estoppel have been satisfied:
“‘To show a prima facie case for application of equitable estoppel, a
plaintiff must show that (1) the defendant made a factual
misrepresentation, (2) that is misleading, (3) that induces actual
reliance that is reasonable and in good faith, and (4) that causes
detriment to the relying party.’ Walworth v. BP Oil Co. (1996), 112 Ohio
App.3d 340, 345, 678 N.E.2d 959, 963. Accord Doe v. Blue Cross/Blue
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Shield of Ohio (1992), 79 Ohio App.3d 369, 379, 607 N.E.2d 492, 498–
499; First Fed. S. & L. Assn. v. Perry's Landing, Inc. (1983), 11 Ohio
App.3d 135, 145, 11 OBR 215, 226–227, 463 N.E.2d 636, 647–648.”
Heskett v. Paulig (1999), 131 Ohio App.3d 221, 226–227, 722 N.E.2d
142.
DeRosa v. Parker, 197 Ohio App.3d 332, 347, 2011-Ohio-6024, 967 N.E.2d 767,
778, ¶ 51-52 (7th Dist.).
{¶64} As Appellee Giffin points out, there is no evidence of any “factual
representation.” The record indicates Appellee Giffin told Marie Mull the second and
third amendments to the trust violated the Family Agreement and were not valid.
There is no evidence Appellee Giffin ever made a representation to Appellants
Charities that the amendments were valid and they would be receiving a portion of
the estate. Also, there is no evidence of reliance that caused detriment to the relying
party; Appellants Charities presented no evidence of their reliance or their detriment.
B. Waiver
{¶65} “‘Waiver’ is defined as a voluntary relinquishment of a known right.”
State ex rel. Wallace v. State Med. Bd. of Ohio, 89 Ohio St.3d 431, 435, 732 N.E.2d
960 (2000). The party attempting to assert waiver “must prove a clear, unequivocal,
decisive act of the party against whom the waiver is alleged, showing such a purpose
or acts amounting to an estoppel on his part.” White Co. v. Canton Transp. Co., 131
Ohio St. 190, 2 N.E.2d 501(1936), paragraph four of the syllabus.
{¶66} We have stated, “‘The essential elements of a waiver are an existing
right, benefit, or advantage; knowledge, actual or constructive, of the existence of
such right, benefit, or advantage; and an actual intention to relinquish it or an
adequate substitute for such intention.’” Kotora v. Unibank, 7th Dist. No. 95-J-2,
1996 WL 420215, (July 25, 1996).
{¶67} Appellee Giffin contends the “right, benefit, or advantage” belongs to
the remainder beneficiaries under the First Amendment because they are the ones
harmed by the breach of the Family Agreement. Appellee Giffin is not a beneficiary
and thus, it would appear that the concept of waiver is inapplicable to him. Or, in
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other words, he could not waive the remainder beneficiaries’ rights. There is nothing
in the record to suggest the remainder beneficiaries knew they were beneficiaries
until this action or that they did anything to waive their rights under the First
Amendment to the Trust.
C. Laches
{¶68} The four elements of laches are “(1) unreasonable delay or lapse of
time in asserting a right, (2) absence of an excuse for the delay, (3) knowledge,
actual or constructive, of the injury or wrong, and (4) prejudice to the other party.”
State ex rel. Craig v. Scioto Cty. Bd. of Elections, 117 Ohio St.3d 158, 882 N.E.2d
435, 2008–Ohio–706, ¶ 11, quoting State ex rel. Polo v. Cuyahoga Cty. Bd. of
Elections, 74 Ohio St.3d 143, 145, 656 N.E.2d 1277 (1995).
{¶69} Similar to the equitable estoppel, this theory fails because no evidence
of prejudice was presented by Appellants Charities.
D. Third Assignment of Error Conclusion
{¶70} For the above stated reasons, this assignment of error lacks merit.
Fourth Assignment of Error
“The court below erred in not removing the Trustee David R. Giffin for conflict
of interest in that he admitted he was protecting William Mull and that he also had a
financial interest in remaining trustee in that the trust portfolio contained substantial
investments in Giffin Mortgage Company. (See: Filed Sealed Financial Portfolio of
Marie Mull Revocable Trust.)”
{¶71} Appellants Charities argue the probate court erred when it failed to
remove Appellee Giffin as trustee. Appellants Charities assert Appellee Giffin had a
conflict of interest and was not able to advance the interest of the Settlor (Marie) or
the beneficiaries of the Trust. They contend his deposition testimony indicates that
his loyalties lie with William, not Marie. 2
2 Although the language of the assignment of error also indicates Appellee Giffin has a conflict of
interest because the trust is invested in his company, the arguments presented under the assignment
of error do not address that claim.
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{¶72} Appellee Giffin counters Appellants Charities argument by asserting
that Appellants Charities did not timely appeal the October 23, 2013 order denying
their request to remove Appellee Giffin as trustee. He argues that even if it was
timely appealed, Appellants Charities lacked standing to seek his removal because
Marie was still alive. However, even if they did have standing, he contends that he
can only be removed for a “serious breach of trust” and Appellants Charities did not
provide any factual basis for an alleged breach of trust.
{¶73} Appellee Quay Mull also responds to Appellants Charities arguments.
He argues the probate court did not err in failing to remove Appellee Giffin as trustee
because Marie is still alive and Appellee Giffin’s duties as trustee are solely to her.
{¶74} Our analysis begins with the jurisdictional issue of whether the appeal is
timely.
{¶75} The order denying the motion to remove Appellee Giffin as trustee is
dated October 23, 2013. The notice of appeal in this case was not filed until March 2,
2015. The notice of appeal was filed approximately one month after the probate court
determined the Second and Third Amendments to the Trust were invalid, and the
First Amendment to the Trust was controlling. This determination was based on the
validity of the Family Agreement and the Amendment to the Family Agreement.
{¶76} Appellee Giffin contends the October 23, 2013 order was a final
appealable order, it was not timely filed, and the appeal of that order is not properly
before this court. He equates the decision to not remove a trustee to the decision to
remove an executor of an estate. He contends we have previously determined the
decision to remove an executor of an estate is a final appealable order. In re
Geanangle, 147 Ohio App.3d 131, 2002-Ohio-850, 768 N.E.2d 1235, ¶ 29 (7th Dist.).
{¶77} Appellants Charities counter and assert that the October 23, 2013
judgment does not contain Civ.R. 54(B) language and thus, did not become a final
appealable order until all claims were resolved on March 2, 2015.
{¶78} “An order of a court is a final, appealable order only if the requirements
of both Civ.R. 54(B), if applicable, and R.C. 2505.02 are met.” Chef Italiano Corp. v.
Kent State Univ., 44 Ohio St.3d 86, 541 N.E.2d 64 (1989), syllabus. Thus, a two-step
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analysis is used to determine whether an order is a final appealable order. First, the
court determines if the order is final within the requirements of R.C. 2505.02. Second,
the court determines whether Civ.R. 54(B) applies and, if so, whether the order being
appealed contains a certification that there is no just reason for delay.
{¶79} Appellee Giffin claims it was a final order under R.C. 2505.02(B)(4),
which states:
(4) An order that grants or denies a provisional remedy and to which
both of the following apply:
(a) The order in effect determines the action with respect to the
provisional remedy and prevents a judgment in the action in favor of the
appealing party with respect to the provisional remedy.
(b) The appealing party would not be afforded a meaningful or effective
remedy by an appeal following final judgment as to all proceedings,
issues, claims, and parties in the action.
R.C. 2505.04(B)(4).
{¶80} In Geanangel, we determined that the decision to remove an executor
met the requirements under R.C. 2505.02(B)(4):
“The removal of an executor, we find, falls within this category of
provisional remedies for which no meaningful or effective remedy could
be granted upon an appeal by an executor following final resolution of
the estate, since there would no longer be any opportunity for the
executor to undertake his duties and functions as executor. It is
therefore on the basis of R.C. 2505.02(B)(4) that we conclude that the
removal of appellant as executor in the present case constitutes a final
appealable order from which appellant may appeal.”
Id. ¶ 28, quoting In re Estate of Nardiello, 10th Dist. No. 01AP-281, 2001-Ohio-4080.
{¶81} Appellee Giffin states the effort to remove a trustee can be equated to
the effort to remove an executor.
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{¶82} We agree. A trustee is a fiduciary just as an executor is a fiduciary.
Both actions to remove occurred in probate court proceedings. The action before us
is a declaratory judgment action initiated by Appellee Giffin to determine which
Amended Trust (One, Two or Three) is the valid trust to use when Marie Mull dies. A
provisional remedy is defined as “a proceeding ancillary to an action, including, but
not limited to, a proceeding for a preliminary injunction, attachment, discovery of
privileged matter, suppression of evidence, * * *.” R.C. 2505.02(A)(3). Thus, the act
of attempting to remove Appellee Giffin is a provisional remedy.
{¶83} In order for a provisional remedy to be considered final (4)(a) and (b),
which are quoted above, must be met. Here, the appealing parties are Appellants
Charities. If Appellee Giffin is mishandling the trust, Appellants Charities are
deprived of a meaningful remedy. If they are beneficiaries, the mishandling of the
trust affects what they may be entitled to. They would not get an effective remedy if
they have to wait until the entire matter is decided because the removal would be too
late.
{¶84} Consequently, based on that reasoning, we conclude that the October
23, 2013 order is a final appealable order.
{¶85} Our next determination is whether Civ.R. 54(B) is applicable.
{¶86} Civ.R. 54(B) states:
When 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. In the absence of a
determination that there is no just reason for delay, any order or other
form of decision, however designated, which adjudicates fewer than all
the claims or the rights and liabilities of fewer than all the parties, shall
not terminate the action as to any of the claims or parties, and the order
or other form of decision is subject to revision at any time before the
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entry of judgment adjudicating all the claims and the rights and liabilities
of all the parties.
Civ.R. 54(B).
{¶87} The October 23, 2013 order does not contain Civ.R 54(B) language.
Despite Appellants Charities insistence to the contrary, Civ.R. 54(B) is inapplicable.
It is well established that “‘[a] provisional remedy is a remedy other than a claim for
relief. Therefore, an order granting or denying a provisional remedy is not subject to
the requirements of Civ.R. 54(B).’“ State ex rel. Butler Cty. Children Servs. Bd. v.
Sage, 95 Ohio St.3d 23, 25, 764 N.E.2d 1027 (2002).
{¶88} For the above stated reasons, we hold that the October 23, 2013 order
was a final appealable order and Appellant Charities failed to file a timely appeal from
that order. Jurisdiction in the court of appeals is based upon a timely filing of a notice
of appeal. App.R. 4; Clermont Cty. Transp. Improvement Dist. v. Gator Milford,
L.L.C., 141 Ohio St.3d 542, 2015-Ohio-241, 26 N.E.3d 806, ¶ 7. On that basis this
assignment of error is dismissed as untimely.
Resolution of Appeal
{¶89} In conclusion, the trial court’s grant of summary judgment for Appellees
Giffin and Quay Mull is hereby affirmed. Assignments of error one, two and three are
meritless. The probate court correctly determined that the 1993 Amended
Agreement rendered the Family Agreement enforceable, there is no evidence the
Family Agreement was revoked during William’s lifetime, and the First Amended
Trust is the controlling trust. The fourth assignment of error is dismissed as an
untimely appeal of the October 23, 2013 order denying Appellants Charities motion
seeking removal of Appellee Giffin as trustee.
Waite, J., concurs.
DeGenaro, J., concurs.