Guardianship & Protective Servs., Inc. v. SetinsekGuardianship & Protective Servs., Inc. v. Setinsek
Joshua M. Garris, 197 West Market Street, #200, Warren, OH 44481 (For Appellee-Guardian and Protective Services, Inc.).
Douglas J. Neuman, Westenfield, Neuman & Parry, 761 North Cedar Street, #1, Niles, OH 44446 (For Other-Rudolph J. and Mary T. Setinsek).
William M. Flevares and Stephen A. Turner, Turner, May & Shepherd, 185 High Street, N.E., Warren, OH 44481 (For Appellant-Rudolph Joseph Setinsek).
Mark S. Finamore, 258 Seneсa Avenue, N.E., P.O. Box 1109, Warren, OH 44481 (For Appellee-Jeffrey S. Hovanic).
{¶1} Defendant-appellant, Rudolph Joseph Setinsek, appeals the July 27, 2010 Judgment Entry of the Trumbull County Court of Common Pleas, Probate Division, removing him as Successor Trustee of the Rudolph J. Setinsek and Mary T. Setinsek Trust (“The Setinsek Family Trust“), on the grounds that he has committed serious breaches of the trust and of the duty of loyalty. For the following reasons, we dismiss the appeal for lack of a final order.
{¶2} On February 1, 2010, plaintiff-appellee, Guardianship and Protective Services, Inc. filed a Complaint (Declaratory Judgment), pursuant to
{¶3} The Complaint alleged the creation of a revocable living trust, known as the Setinsek Family Trust, by Rudolph J. Setinsek and Mary T. Setinsek, the parents of the appellant herein. In December 2008, the Setinseks wеre declared incompetent by the Trumbull County Probate Court, Case Nos. 2008-GDP-0168 and 2008-GDP-0169. Upon the declaration of his parents’ incompetency, Setinsek became the Successor Trustee for The Setinsek Family Trust. As of December 2009, Guardianship and Protective Services has served as the Successor Guardian to the Estates of Rudolph J. and Mary T. Setinsek.
{¶4} The Complaint further alleged that Setinsek committed a breach of trust by violating the duties he owed to the Trust beneficiaries as Successor Trustee. The Complaint sought, inter alia, his removal as Successor Trustee, an order that he render an accounting of activities as Trustee, and damages.
{¶5} On February 10, 2010, the probate court issued a Judgment Entry appointing Robert G. Kroner, Jr., “special court investigator and special сommissioner
{¶6} On June 14, 2010, a hearing was held on the Complaint.
{¶7} On July 27, 2010, the probate court issued a Judgment Entry, ordering “that *** Setinsek be *** removed as Successor Trustee for serious breaches of trust,” and the appointment of another Successor Trustee. The Entry ordered “that this cause is *** continued to allow additional time for the Special Cоurt Investigator and Special Commissioner to further investigate the trust and for the [newly appointed] Successor Trustee to review the trust assets and make a recommendation to the Court as to whether or not any transactions under the former trustee [Setinsek] should be voided.” The Entry further ordered that the fees and expenses of the Special Investigator for services rendered, аs well as any additional fees and expenses hereafter approved by the court, shall be paid by the Trust and surcharged against Setinsek‘s share of the trust estate. Finally, the court ruled: “All pending further order of the Court.”
{¶8} On August 18, 2010, Setinsek filed his Notice of Appeal.
{¶9} Guardianship and Protective Services raises the preliminary argument that the probate court‘s July 27, 2010 Judgment Entry does not constitute a finаl order. We agree.
{¶10} “Courts of appeals *** have such jurisdiction as may be provided by law to review and affirm, modify, or reverse judgments or final orders of the courts of record inferior to the court of appeals ***.”
{¶12} In the present case, the probate court‘s July 27, 2010 Judgment Entry expressly stated that the cause would continue until the Trust assets could be reviewed and a determination made whether any of Setinsek‘s transactions should be voided. Cf.
{¶13} In response, Setinsek asserts that “the effect of the probate court‘s оrder removing him as successor trustee effectively end[s] his involvement in the pending action,” and “foreclosures the possibility of further damages against Appellant.” Contrary to this position, the court‘s order leaves open the possibility of the recovery of Trust assets for the benefit of Guardianship and Protective Services, as guardian of the Estates of Rudolph J. and Mary T. Setinsek (the рrimary beneficiaries of The Setinsek Family Trust). Setinsek‘s position is also contrary to the provision of
{¶14} For the foregoing reasons, the present appeal is dismissed for lack of a final order.
THOMAS R. WRIGHT, J., concurs with a Concurring Opinion,
MARY JANE TRAPP, J., dissents with a Dissenting Opinion.
{¶15} Although I agree with the outcome and basic analysis of the lead opinion, I write separately because certain issues concerning the finality of the appealed judgment warrant additional discussion.
{¶16} First, it is important to emphasize that the request to remove appellant as the successor trustee was not made in the context of a motion filed in a pending еstate proceeding before the probate court. Instead, the request was set forth as part of the prayer for relief in a complaint which appellee filed at the outset of the underlying action. Accordingly, the removal of the trustee in this particular matter cannot be considered a “provisional remedy” under
{¶17} Second, as was obliquely referenced in the lead opinion, the complaint in question was brought pursuant to
{¶18} Under its first claim in the instant complaint, appellee sought a declaratory judgment as to whether appellant had breached his duties as the successor trustee. In addition, the caption of appellee‘s complaint indicated that the action had been brought as a proceeding in declaratory judgment. Thus, as such a legal proceeding, the basic procedure of the case was governed by the provisions of
{¶19} Third, besides the declaration of rights under the trust, appellee sought the removal of appellant as trustee, the appointment of a new trustee, the submission of a final accounting by appellant, and a determination of monetary damages resulting from appellant‘s breach. Despite that fact that appellee‘s request for the additional remedies was delineated under two claims distinct from the “declaratory judgment” claim, it was evident from the nature of the allegations in thе complaint that the trial court‘s ruling on the additional remedies was contingent upon its resolution of the declaratory judgment claim; i.e., appellee would not be entitled to any additional relief if it was found that no breach of trust had taken place.
{¶20} However, in relation to the granting of further relief based upon the decree in a declaratory judgment action,
{¶21} Fourth, I would note that, pursuant to well-settled Ohio law, a declaratory judgment action constitutes a special proceeding for purposes of
{¶22} Nevertheless, it is equally well-settlеd under Ohio law that
{¶23} As a final point, I would indicate that, in many respects, it seems illogical
{¶24} Stated otherwise, there is no logical reason to determine whether an order qualifies as one that affects a substantial right in a special proceeding if, in the end, it is going to be treated as any other claim in the absence of
{¶25} However, under the precedent originally stated by the Supreme Court of Ohio in the General Accident opinion,
{¶26} At first blush, and upon a simple
{¶27} Such analysis is especially needed in light of the inharmonious jurisprudence in the area of probate proceedings, special proceedings, and provisional remedies.
{¶28}
{¶29} “‘Special proceeding’ means an action or proceeding that is specially created by statute and that prior to 1853 was not denoted as an action at law or a suit in equity.”
{¶30} I note, at the outset, that the question of finality was not raised by motion, but asserted in appellee‘s brief as an “additional issue for review.” In his reply brief, the appellant, Mr. Setinsek, argues that his removal as fiduciary, in and of itself, renders the order final and appealable, citing a Sevеnth District decision. Indeed our court has held that an order denying a party‘s request to remove an executor is a final, appealable order under
{¶32} Their analysis is enlightening, beginning first with the special proceeding question: “There is a split of opinion in Ohio on whether probate рroceedings are ‘special proceedings’ as that term is used in
{¶33} But that declaration did not resolve the question, and the Sixth District went on to analyze the provisional remedy portion of the statute,
{¶34} After reviewing the сonflicts among the various districts, the Sixth District examined and accepted the Meloni determination that the denial of a motion to remove a fiduciary was a final, appealable order as a provisional remedy, because “appellant would have no effective or meaningful remedy following the final resolution of the estate because appellees’ duties, as co-executors, would terminate.” Sneed at ¶16, quoting, Meloni at ¶29.
{¶35} In noting the conflict between the various districts is really about “what will be lost if a party who wishes to be the executor of an estate is not allowed to serve in that capacity,” the Sixth District observed that its earlier decisions “focused on whether any mistakes or mishandling of estate assets could be remedied by an appeal after the estate is closed.” Id at ¶17. Other districts, such as ours, have “focused on whether a person‘s missed opportunity to administer the estate himself could be remedied by an appeal after the estate is closed.” Id. The Sixth District then concluded that the loss of a person‘s opportunity to be the executor of an estate is “a loss [that] cannot be remedied.” Id. at ¶18.
{¶36} That court acknowledged “the economic impact of a decision as to who will administer an estate, and the conclusion that any mistakes or mishandling of estate assets could be remedied after the estate closed, is theoretically true, but in practice not realistic. Once an estate has been administered, all of the decisions about how to value, invest, dispose of, and distribute the assеts of the estate will have been made. Second guessing those decisions after the fact is generally futile and even if mishandling can be proven, recovering those assets may be even more futile.” Id.
{¶37} Unfortunately, the Supreme Court of Ohio has chosen not to weigh in on a certified conflict as to whether probate estate proceedings (which most certainly could include trust proceedings before the probate court) were known at common law and are, therefore, special proceedings under