2022 Ohio 456
Ohio Ct. App.2022Background
- In 1996 Myron and Marie Marfut created a revocable inter vivos trust naming themselves as primary trustees, daughter Darlene Werner as successor trustee, son Glenn Marfut as alternate successor, and daughter Kimberly Kovar as second alternate; all three children were beneficiaries.
- A 2012 amendment removed Glenn as successor trustee, named Darlene as co-trustee with the settlors and Kovar as successor trustee, and provided that if Kovar could not serve the remaining beneficiaries would pick a successor by majority.
- Marie died October 15, 2012; Myron resigned as trustee in 2013, leaving Darlene as sole trustee; Myron died July 15, 2015.
- On March 25, 2021, Glenn sued Darlene (individually and as trustee) alleging breach of fiduciary duties, failure to account, conversion, and asking for a constructive trust and an accounting from the time Darlene became trustee.
- Darlene moved to dismiss, arguing under R.C. 5808.13(G) her duties during the settlors’ lifetimes were owed only to the settlors and that she complied with required accounting after Myron’s death.
- The probate court dismissed the entire complaint; the Ninth District reversed, holding the court improperly relied on facts outside the complaint and sua sponte dismissed claims without notice, and remanded for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether complaint properly dismissed under Civ.R.12(B)(6)/R.C.5808.13(G) for accounting claim | Glenn: trustee owed fiduciary duties to beneficiaries and failed to provide an accounting and distribute funds | Werner: duties during settlors' lifetimes were owed only to settlors; Glenn not entitled to an accounting for that period and she provided a post-death accounting | Court: trial court erred to grant dismissal based on facts outside the complaint; allegations must be accepted as true on 12(B)(6); reversal and remand |
| Whether court could dismiss entire complaint when motion targeted only accounting claim | Glenn: court could not dismiss claims not addressed by motion and must be given notice before sua sponte dismissal | Werner: (motion silent as to other claims) | Court: dismissal of entire complaint without notice was improper; sua sponte dismissal requires notice and opportunity to respond; remand |
Key Cases Cited
- State ex rel. Hanson v. Guernsey Cty. Bd. of Commrs., 65 Ohio St.3d 545 (Ohio 1992) (explaining Civ.R. 12(B)(6) tests complaint sufficiency)
- Mitchell v. Lawson Milk Co., 40 Ohio St.3d 190 (Ohio 1988) (dismissal only when no set of facts could entitle plaintiff to relief)
- Perrysburg Twp. v. Rossford, 103 Ohio St.3d 79 (Ohio 2004) (12(B)(6) dismissals reviewed de novo)
- State ex rel. Fuqua v. Alexander, 79 Ohio St.3d 206 (Ohio 1997) (court must accept complaint allegations as true and not consider outside facts on motion to dismiss)
- State ex rel. Edwards v. Toledo City School Dist. Bd. of Edn., 72 Ohio St.3d 106 (Ohio 1995) (a court may dismiss sua sponte only after notice and opportunity to respond)