Wisehart v. Wisehart

[Cite as Wisehart v. Wisehart, 2021-Ohio-3649.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
PREBLE COUNTY
ARTHUR DODSON WISEHART, CO- :
TRUSTEE OF DOROTHY R. WISEHART
TRUST, : CASE NO. CA2021-01-001
Appellee, : OPINION
10/12/2021
:
- vs -
:
ARTHUR MCKEE WISEHART, CO- :
TRUSTEE OF DOROTHY R. WISEHART
TRUST, et al.,
Appellant.
CIVIL APPEAL FROM PREBLE COUNTY COURT OF COMMON PLEAS
Case No. 15 CV 30565
Murr Compton Claypoole & Macbeth, and Jane E. Beach, and Schneider Smeltz Spieth
Bell, LLP, and Scott J. Robinson, for appellee.
Arthur McKee Wisehart, pro se.
BYRNE, J.
{¶1} Arthur McKee Wisehart appeals the decision of the Preble County Court of
Common Pleas, which granted summary judgment in favor of plaintiff-appellee, Arthur
Dodson Wisehart. For the reasons described below, we affirm that decision.
I. Procedural and Factual History
{¶2} In 1987, Dorothy Wisehart established the Dorothy R. Wisehart Trust ("the
Preble CA2021-01-001
Trust"). Dorothy named herself and her son, Arthur McKee Wisehart ("McKee") as co-
trustees.1 Dorothy conveyed to the Trust an undivided half-interest in two farm properties
located in Preble County: a farm located at 5291 New Paris Gettysburg Road and a farm
located at 5640 Oxford Gettysburg Road (collectively, "the Farms").
{¶3} Dorothy retained her half-interest in the Farms. She passed away in 1993.
Upon her death, her remaining half-interest in the Farms transferred to McKee. The
remaining half-interest remained with the Trust.
{¶4} Upon Dorothy's death, the Trust became irrevocable. From 1993 to 2010,
McKee served as sole trustee of the Trust.
{¶5} In 2010, the Trust had five income beneficiaries, consisting of Elizabeth
Wisehart – McKee's wife from approximately 1953 to the date of her death in 2013 – and
Elizabeth and McKee's four children. Dodson is one of those children. McKee was never
an income beneficiary of the Trust.
{¶6} The Trust provided for removal and replacement of the trustee upon the written
request of 75 percent of the income beneficiaries. Pursuant to this provision, in January
2010, four of the five income beneficiaries (80 percent) executed a document removing
McKee as sole trustee of the Trust, and then appointing McKee and Dodson as co-trustees.
{¶7} In 2015, in his capacity as co-trustee of the Trust, Dodson filed suit against
McKee, individually and in McKee's capacity as co-trustee. The lawsuit sought to quiet title
to the Preble County real estate partially held by the Trust. Dodson alleged that he filed the
action because McKee was in the midst of attempting to sell the Preble County real estate
and lacked the authority to do so. Dodson also requested the court declare that McKee
was not the sole trustee of the Trust and that McKee and Dodson were co-trustees. Dodson
1. The plaintiff and defendant have the same first and last names so for ease of reading we will refer to the
parties using their middle names.
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additionally asserted a claim for breach of fiduciary duty against McKee and requested an
accounting of any Trust income received by McKee.
{¶8} As the lawsuit progressed, the trial court issued orders enjoining McKee from
selling the Farms, ordering him to maintain the status quo, and further ordering him to
deposit any income produced by the Farms with the court until the matter could be decided.
McKee violated all of these orders and the court ultimately found him in contempt. McKee
appealed the contempt order. We affirmed the trial court. Wisehart v. Wisehart, 12th Dist.
Preble No. CA2018-12-019, 2019-Ohio-3833.
{¶9} In 2019, the parties filed cross-motions for summary judgment. Subsequently,
the trial court issued its summary judgment decision, which denied McKee's motion and
granted Dodson's motion. The court found that (1) the Trust held an undivided one-half
interest in the Farms, (2) the appointment of Dodson and McKee as co-trustees was valid,
(3) all of McKee's prior attempts to convey the Farms out of the Trust were void, and (4)
that McKee breached his fiduciary duty to the Trust, must provide an accounting for his
actions, and must repay the Trust income that he wrongfully withheld. Dodson
subsequently moved for attorney fees and the court held a hearing. In December 2020, the
court granted Dodson $134,374.22 in attorney fees.
{¶10} McKee appeals, raising two assignments of error, which we address together.
II. Law and Analysis
{¶11} Assignment of Error No. 1:
{¶12} THE TRIAL COURT HAD NO DISCRETION BUT TO DISMISS FOR LACK
OF JUSTICIABLE JURISDICTION AND ERRED BY FAILING TO DISMISS.
{¶13} Assignment of Error No. 2:
{¶14} THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT TO
THE PLAINTIFF-APPELLEE, AND DENYING OR NOT RULING UPON DEFENDANT'S
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MOTIONS FOR SUMMARY JUDGMENT.
{¶15} Though McKee was apparently a licensed attorney at one time, the legal
arguments he presents in his brief are rambling, incoherent, and rife with irrelevant legal
concepts and legal authority. McKee, as a pro se litigant, is held to the same standard as
a party represented by counsel. Chambers v. Setzer, 12th Dist. Clermont No. CA2015-10-
078, 2016-Ohio-3219, ¶ 10.
{¶16} What we can discern is that McKee is arguing that all of the trial court's orders
in this case were invalid because the case was not "justiciable," that the trial court lacked
subject-matter jurisdiction over the lawsuit, and that Dodson, who he refers to as the "non-
cognizable fabricated plaintiff-appellee," lacked standing to bring the lawsuit against him
because Dodson was never a co-trustee of the Trust.
A. Summary Judgment Standard
{¶17} Appellate review of a trial court's decision granting summary judgment is de
novo. M&T Bank v. Johns, 12th Dist. Clermont No. CA2013-04-032, 2014-Ohio-1886, ¶ 7.
Pursuant to Civ.R. 56, summary judgment is appropriate when (1) there is no genuine issue
of any material fact, (2) the moving party is entitled to judgment as a matter of law, and (3)
the evidence submitted can only lead reasonable minds to one conclusion and that
conclusion is adverse to the nonmoving party, who is entitled to have the evidence
construed most strongly in his favor. Bank of New York Mellon v. Putman, 12th Dist. Butler
No. CA2012-12-267, 2014-Ohio-1796, ¶ 18. "The party moving for summary judgment
bears the initial burden of demonstrating that no genuine issue of material fact exists." Fifth
Third Bank v. Bolera, 12th Dist. Butler No. CA2017-03-039, 2017-Ohio-9091, ¶ 25. Once
this initial burden is met, the nonmoving party "must then rebut the moving party's evidence
with specific facts showing the existence of a genuine triable issue; it may not rest on the
mere allegations or denials in its pleadings." Deutsche Bank Natl. Trust Co. v. Sexton, 12th
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Dist. Butler No. CA2009-11-288, 2010-Ohio-4802, ¶ 7, citing Civ.R. 56(E).
B. Legal Analysis
{¶18} "For a cause to be justiciable, there must exist a real controversy presenting
issues which are ripe for judicial resolution and which will have a direct and immediate
impact on the parties." Ohio Pyro, Inc. v. Ohio Dept. of Commerce, Div. of State Fire
Marshal, 12th Dist. Fayette Nos. CA2005-03-009 and CA2005-03-011, 2006-Ohio-1002, ¶
32 (reversed on other grounds), citing Tradesmen Internatl., Inc. v. Massillon, 5th Dist. Stark
No.2002CA00251, 2003-Ohio-2490, ¶ 32. In order for a justiciable question to exist, the
"danger or dilemma" of the plaintiff must be present, not contingent on the happening of
hypothetical future events and the threat to his or her position must be actual and genuine
and not merely possible or remote. Mid-American Fire & Cas. Co. v. Heasley, 113 Ohio
St.3d 133, 2007-Ohio-1248, ¶ 9.
{¶19} This case presents a justiciable controversy ripe for judicial resolution.
Dodson, in his capacity as co-trustee of the Trust, alleged that McKee was taking unilateral
action to convey assets partially owned by the Trust and lacked the legal authority to do so.
Dodson claimed that McKee was breaching his fiduciary duties to the Trust beneficiaries by
withholding Trust income. Dodson alleged that McKee believed himself to be sole trustee
of the Trust and disputed Dodson's authority as a co-trustee. All these issues were
contested and there was a real danger or dilemma that the Trust beneficiaries would be
injured by McKee's actions if Dodson did not involve the court system in resolving this
dispute. McKee's argument that this case was not justiciable is meritless.
{¶20} Next, Dodson argues that the Preble County court lacked subject-matter
jurisdiction to decide this case. "'Subject-matter jurisdiction of a court connotes the power
to hear and decide a case upon its merits' and 'defines the competency of a court to render
a valid judgment in a particular action.'" Cheap Escape Co., Inc. v. Haddox, L.C.C., 120
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Ohio St.3d 493, 2008-Ohio-6323, ¶ 6, quoting Morrison v. Steiner, 32 Ohio St.2d 86, 87
(1972). Whether a court possesses subject-matter jurisdiction over a case is a matter of
law that this court reviews de novo. Pratts v. Hurley, 102 Ohio St.3d 81, 2004-Ohio-1980, ¶
34; Powers-Urteaga v. Urteaga, 12th Dist. Warren No. CA2014-08-109, 2015-Ohio-2465, ¶
15.
{¶21} The Preble County Court of Common Pleas possessed subject-matter
jurisdiction over this case. The case involved a controversy over the ownership of real
estate located in Preble County, a Trust that owned an interest in that real estate, and
allegedly misappropriated Trust income derived from that real estate. The court also had
subject-matter jurisdiction to resolve ancillary issues such as whether Dodson was properly
appointed co-trustee of the Trust. McKee's subject-matter jurisdiction argument is
meritless.
{¶22} With regard to Dodson's alleged lack of standing, McKee argues, without
citation to the terms of the Trust or any other legal authority, that only Dorothy could appoint
a co-trustee. McKee contends that when Dorothy died the Trust became irrevocable and
no one else could become a co-trustee in the absence of a court order. However, McKee
fails to address the Trust provision that permitted 75 percent of the Trust beneficiaries to
remove and replace the trustee. Instead, McKee relies on mere conclusory statements,
unsupported by evidence in the record or persuasive legal authority, in arguing that Dodson
is not co-trustee and lacks standing. McKee's standing argument lacks any conceivable
merit.
{¶23} To the extent McKee makes any argument we have not specifically
referenced in this opinion, we find upon our review of the briefs and the record that such
arguments are without merit.
III. Conclusion
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{¶24} Upon review of McKee's appellate briefs and the record, we find no error in
the trial court's decision granting summary judgment and attorney fees. We overrule
McKee's first and second assignments of error.
{¶25} Judgment affirmed.
M. POWELL, P.J., and S. POWELL, J., concur.
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