Gorby v. Aberth
81 N.E.3d 910
Ohio Ct. App.2017Background
- Dr. Richard K. Cavanaugh died testate in April 2012; his will funded the Richard K. Cavanaugh Revocable Trust naming his two adult children (Rachel Gorby and Robert Cavanaugh) as income beneficiaries and the University of San Francisco as remainder beneficiary. Joel Aberth, the settlor’s longtime attorney, was named successor trustee and executor.
- Trust assets were primarily held at Robert Baird & Company, plus savings bonds (~$60,000) and a checking account (~$9,000).
- Beneficiaries filed exceptions to the estate accounting and then sued Aberth claiming breach of trust and fiduciary duty, self-dealing, failure to provide required reports/communications, failure to distribute income quarterly, and failure to use his special skills; they sought removal and damages.
- After a five-day hearing the magistrate ruled for Aberth; the probate court adopted that decision, finding only minor/technical breaches (e.g., an IOLTA check used improperly, some reporting/distribution delays) but no serious breach, no demonstrable harm, and declined to remove him.
- Beneficiaries appealed on multiple grounds; the Ninth District Court of Appeals affirmed, overruling all five assignments of error.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether court improperly considered parol evidence/hearsay when interpreting trust | Gorby: probate court relied on Aberth’s testimony about settlor’s intents (Finkes, exclude Fogg), altering trust by parol evidence/hearsay | Aberth: testimony was elicited in cross-exam by plaintiffs; invited error doctrine bars complaint | Court: Overruled — plaintiffs invited the testimony; no reversible error |
| Whether Aberth committed a "serious breach" or demonstrated unfitness/persistent failure warranting removal | Gorby: multiple failures (delayed income, poor communication, lack of annual reports, self-dealing, not using attorney skills) amount to serious breach or persistent failure under R.C. 5807.06(B) | Aberth: delays were explainable/prudent (waiting for will-contest period, info on real estate), complied with reporting/statutory duties, no evidence of self-dealing | Court: Overruled — no clear-and-convincing proof of serious breach or harm; discretionary decision to retain trustee affirmed |
| Whether the probate court failed to enforce Probate Code requirements (e.g., listing creditor status, fee disclosures) | Gorby: Aberth was sloppy/inconsistent on probate forms and estate accounting, breaching duty of care requiring enforcement | Aberth: no developed legal argument or evidentiary showing that statutory violations warranted relief | Court: Overruled — appellants failed to cite authorities/develop argument; court declines to address merit |
| Whether trustee may pay his law firm from trust and whether due process was violated by approving fees without formal application | Gorby: Aberth cannot draw trust funds for fees if he breached; also claims lack of notice/opportunity when court approved fees without application | Aberth: Trust permits payment of attorneys to defend claims; no breach shown; issue procedurally waived | Court: Overruled — no breach established; due process objection not raised below so not considered on appeal |
Key Cases Cited
- Belvedere Condominium Unit Owners’ Assn. v. R.E. Roark Cos., Inc., 67 Ohio St.3d 274 (Ohio 1993) (issues not raised below generally will not be considered on appeal)