In re McCauley Irrevocable Trust , 2014 Ohio 5123 ( 2014 )


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  • [Cite as In re McCauley Irrevocable Trust, 
    2014-Ohio-5123
    .]
    COURT OF APPEALS
    STARK COUNTY, OHIO
    FIFTH APPELLATE DISTRICT
    IN RE: CLETUS P. & MARY A.                        :           JUDGES:
    MCCAULEY IRREVOCABLE TRUST                        :
    :           Hon. William B. Hoffman, P.J.
    :           Hon. Patricia A. Delaney, J.
    :           Hon. Craig R. Baldwin, J.
    :
    :
    :           Case No. 2014CA00031
    :
    :           OPINION
    CHARACTER OF PROCEEDING:                                      Appeal from the Stark County
    Common Pleas Court, Probate
    Division 208532, 219397
    JUDGMENT:                                                     Affirmed
    DATE OF JUDGMENT:                                             November 18, 2014
    APPEARANCES:
    For Plaintiffs-Appellants                                     For Defendant-Appellee
    CRAIG T. CONLEY                                               JOHN R. FRANK
    604 Huntington Plaza                                          T.K. Harris Building, Suite 102A
    220 Market Ave. South                                         3930 Fulton Drive, NW
    Canton, OH 44702                                              Canton, OH 44718
    Stark County, Case No. 2014CA00031                                                      2
    Baldwin, J.
    {¶1}   Appellants Emily R. Clark and Jennifer M. Fricke, trust beneficiaries of the
    Cletus P. & Mary A. McCauley Irrevocable Trust, appeal a judgment of the Stark County
    Probate Court consolidating Probate Case Nos. 208532 and 219397, and appeal a
    judgment denying their motion for an immediate transfer of trust assets. Appellee is
    John R. Frank, Second Successor Trustee of the trust.
    STATEMENT OF FACTS AND CASE
    {¶2}   Paula Clark is one of four children of Mary and Cletus McCauley.
    Appellants Emily R. Clark and Jennifer M. Fricke are the daughters of Paula Clark.
    {¶3}   A will executed by Cletus and Mary on May 29, 2007 gave specific sums
    of money to their children. The remainder was to pour over into the Cletus P. McCauley
    Trust. Also on May 29, 2007, Cletus and Mary created an Irrevocable Trust Agreement
    that primarily benefited their disabled adult son Kevin during his lifetime.
    {¶4}   Mary McCauley died on August 9, 2008. Cletus McCauley died on
    December 23, 2008. Paula Clark was appointed to serve as the Executrix and opened
    Cletus McCauley's estate in the Stark County Probate Court on December 30, 2008.
    Raymond McCauley was appointed the Trustee of the McCauley Irrevocable Trust. On
    September 15, 2008, Paula Clark was appointed the first successor trustee for the
    McCauley Irrevocable Trust because of Raymond McCauley's health issues.
    {¶5}   Case No. 208532 was filed on March 24, 2010, by Kevin McCauley’s
    court-appointed guardians, seeking removal of Ms. Clark as first successor trustee, as
    well as an accounting and damages for breach of fiduciary duty. Ms. Clark resigned,
    Stark County, Case No. 2014CA00031                                                     3
    and the Probate Court appointed appellee as second successor trustee on November
    18, 2010.     The case against Paula Clark was then stayed due to her filing for
    bankruptcy.
    {¶6}      Kevin McCauley passed away on September 6, 2013. On September 20,
    2013, appellants filed a declaratory judgment action in the Stark County Common Pleas
    Court General Division under Case No.2013CV02559, alleging that appellee as second
    successor trustee breached his fiduciary duties to the trust beneficiaries. On November
    8, 2013, the General Division transferred the declaratory judgment action to the Probate
    Court to be consolidated with Probate Case No. 208532. On November 21, 2013,
    appellants filed a declaratory judgment action against appellee in Probate Court Case
    No. 219397. The trial court determined that General Division Case No.2013CV02559
    should be consolidated with Probate Court Case No. 219397, instead of Case No.
    208532. On February 3, 2014, the trial court consolidated Case No. 208532 with Case
    No. 219397. The judgment consolidating the cases is the subject of this appeal.
    {¶7}      On January 22, 2014, appellants filed a motion for immediate transfer of
    trust assets in Case No. 219397. The court overruled the motion, and appellants filed
    an appeal from this judgment. However, on July 15, 2014, Judge Stormer sitting by
    assignment in Case No. 220494, responded to appellee’s request for instructions by
    ordering the distribution of one half of the trust’s balance, or $129,000, to the
    beneficiaries.
    {¶8}      Appellants assign two errors:
    {¶9}      “I.   THE TRIAL COURT ERRED IN DENYING, BY AND THROUGH ITS
    CONSOLIDATION BELOW OF TWO CASES, APPELLANTS’ MOTION TO DISMISS.
    Stark County, Case No. 2014CA00031                                                          4
    {¶10} “II.   THE TRIAL COURT ERRED IN DENYING APPELLANTS’ MOTION
    FOR IMMEDIATE TRANSFER OF TRUST ASSETS.”
    I.
    {¶11} In their first assignment of error, appellants argue that the court erred in
    denying their motion to dismiss on the grounds of lack of subject matter jurisdiction, and
    also argue that the court abused its discretion in consolidating Case Nos. 208532 and
    219397 because they lacked commonality of parties and issues.
    {¶12} In their reply brief, appellants concede that the court had jurisdiction over
    the trust pursuant to this Court’s decision in In re Cletus P. McCauley and Mary A.
    Mcauley Irrevocable Trust, 5th Dist. Stark No. 2013CA00237, 
    2014-Ohio-3489
    .
    {¶13} Appellants also argue that the court erred in consolidating the two cases
    because of lack of commonality of parties and issues.
    {¶14} A consolidation of cases lies within the sound discretion of the trial court.
    Director of Highways v. Kleines, 
    38 Ohio St.2d 317
    , 
    313 N.E.2d 370
     (1974). An abuse
    of   discretion implies that the court's attitude is unreasonable, arbitrary or
    unconscionable.     Blakemore v. Blakemore, 
    5 Ohio St.3d 217
    , 219, 
    450 N.E.2d 1140
    (1983).
    {¶15} Consolidation of cases is controlled by Civ.R. 42(A), which states, “When
    actions involving a common question of law or fact are pending before a court, that
    court after a hearing may order a joint hearing or trial of any or all the matters in issue in
    the actions; it may order some or all of the actions consolidated; and it may make such
    orders concerning proceedings therein as may tend to avoid unnecessary costs or
    delay.”
    Stark County, Case No. 2014CA00031                                                        5
    {¶16} The trial court found that the issues in the two cases are identical or
    closely related, as both include a demand for accounting, a demand for distribution, an
    alleged breach of fiduciary duty, and a request for removal of the trustee. The court
    noted that counsel for appellants acknowledged that the issues pending in Case No.
    208532 could be heard in Case No. 219397.                Further, litigation surrounding the
    McCauley estate and/or trust has resulted in multiple case filings in the Probate Court,
    the Common Pleas Court General Division, and this Court. The trial court did not abuse
    its discretion in consolidating the instant cases based on their commonality of issues
    and the court’s intention to streamline the litigation surrounding the trust.
    {¶17} The first assignment of error is overruled.
    II.
    {¶18} In their second assignment of error, appellants argue that the trial court
    erred in overruling their motion for a distribution of trust funds.
    {¶19} In Case No. 220494, also involving the subject trust, Judge Stormer
    ordered a distribution of one half of the balance of the trust funds to the beneficiaries,
    including appellants herein.       Because appellants received the distribution in a
    companion case, the court’s failure to order distribution in this case is moot.
    Stark County, Case No. 2014CA00031                                              6
    {¶20} The second assignment of error is overruled. The judgment of the Stark
    County Common Pleas Court, Probate Division, is affirmed.      Costs assessed to
    appellants.
    By: Baldwin, J.
    Hoffman, P.J. and
    Delaney, J. concur.
    

Document Info

Docket Number: 2014CA00031

Citation Numbers: 2014 Ohio 5123

Judges: Baldwin

Filed Date: 11/18/2014

Precedential Status: Precedential

Modified Date: 11/19/2014