CINDY McHENRY Plaintiff-Appellee -vs- GLENN McHENRY, JR. Defendant-Appellant
Case No. 2014 CA 00146
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
June 22, 2016
2015-Ohio-2479
Hon. W. Scott Gwin, P. J. Hon. John W. Wise, J. Hon. Craig R. Baldwin, J.
CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common Pleas, Probate Division, Case No. 216246 JUDGMENT: Dismissed
APPEARANCES:
For Plaintiff-Appellee
KEVIN R. McMILLAN
JONATHAN F. SOBEL
KABAT, McMILLAN, MIELZINER & SOBEL
30195 Chagrin Boulevard, Suite 300
Pepper Pike, Ohio 44124
For Defendant-Appellant
THOMAS C. LOEPP
MAISTROS & LOEPP
3580 Darrow Road
Stow, Ohio 44224
{¶1}. Defendant-Appellant/Cross-Appellee Glenn McHenry, Jr. appeals the decision of the Stark County Court of Common Pleas, Probate Division, which ruled partially in favor of Plaintiff-Appellee/Cross-Appellant Cindy McHenry, his sister, in her suit for conversion, breach of trust, and other claims. The relevant facts leading to this appeal are as follows.
{¶2}. Appellee Cindy and Appellant Glenn, Jr. are the children of the late Glenn E. McHenry, Sr. (hereinafter “Glenn, Sr.“).
{¶3}. On June 27, 2007, Glenn, Sr. executed a revocable living trust, which inter alia conveyed to said trust certain real property on Canton Road in Akron, Ohio, and Oaklynn Street in Uniontown, Ohio.
{¶4}. Also, on June 27, 2007, Glenn, Sr. executed a last will and testament. The will included the directive that all legally enforceable debts and funeral expenses be paid, with the remainder of the estate going to the aforesaid trust.
{¶5}. In addition, on December 23, 2010, Glenn, Sr. executed certain amendments to the revocable living trust.
{¶6}. Glenn, Sr. passed away on January 13, 2011. Appellee Cindy at first accepted trusteeship; however, she resigned as trustee on or about February 2, 2011. Appellant Glenn, Jr. thereupon became the trustee.
{¶7}. Appellee Cindy thereafter alleged, among other things, that she was deceived into placing certain monies into an account of the trust, and that she did not receive her full benefit from same and from the balance of the trust. On November 1, 2012, Appellee Cindy filed a lawsuit against Appellant Glenn, Jr. in the Stark County
{¶8}. On December 3, 2012, the trial court granted a preliminary injunction. Appellant Glenn, Jr., filed an immediate appeal of that ruling; however, this Court dismissed the appeal for want of a final appealable order on August 26, 2013. See McHenry v. McHenry, 5th Dist. Stark No. 2013CA00001, 2013-Ohio-3693.
{¶9}. The case proceeded to a bench trial on February 6 and 10, 2014.
{¶10}. On April 28, 2014, the trial court issued a twenty-seven-page judgment entry regarding most of appellee‘s complaint. The court did not address attorney fees, which were ordered to be reviewed at a scheduled hearing.
{¶11}. In essence, the trial court in the aforesaid judgment entry (1) denied Appellee Cindy‘s request for permanent injunction, (2) denied appellee‘s request for forfeiture, (3) denied appellee‘s request for economic damages for any delay in transferring certain property, (4) denied appellee‘s request for economic damages for failing to provide an accounting, (5) granted appellee a judgment in the amount of $13,364.32, (6) denied appellee‘s request for punitive damages, (7) ordered the return of the grantor‘s Cadillac to the trust, (8) ordered the removal of Appellant Glenn, Jr. as trustee (with appellant to be discharged after trial court approval of a comprehensive
{¶12}. On July 9, 2014, following a hearing on June 3, 2014, the trial court issued a judgment entry awarding attorney fees to appellant in the amount of $49,444.28.
{¶13}. On August 6, 2014, Appellant Glenn, Jr. filed a notice of appeal. He herein raises the following five Assignments of Error:
{¶14}. “I. THE TRIAL COURT ABUSED ITS DISCRETION IN GRANTING AND CONTINIUNG [SIC] THE PRELIMINARY INJUNCTION.
{¶15}. “II. THE TRIAL COURT‘S DECISION AS TO THE CLAIM FOR CONVERSION IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶16}. “III. THE TRIAL COURT‘S DECISION AS TO THE CLAIM FOR BREACH OF TRUST IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶17}. “IV. THE TRIAL COURT ERRED AND ABUSED ITS DISRETION [SIC] IN FINDING THAT THE DEFENDANT HAD FAILED TO PROVIDE AN ACCOUNTING WHERE NONE WAS LEGALLY NECESSARY.
{¶18}. “V. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN AWARDING THE SUM OF $49,444.28 IN ATTORNEY FEES.”
{¶19}. Appellee Cindy filed a notice of cross-appeal on August 18, 2014, and herein raises the following assigned errors on her cross-appeal:
{¶20}. “I. THE TRIAL COURT ABUSED ITS DISCRETION IN FAILING TO AWARD APPELLEE PUNITIVE DAMAGES FOR APPELLANT‘S CONVERSION.
{¶21}. “II. THE TRIAL COURT ABUSED ITS DISCRETION IN FAILING TO AWARD A FORFEITURE AS A RESULT OF APPELLANT‘S BREACHES OF TRUST.”
Final Appealability
{¶22}. As an initial matter, we must consider whether the two judgment entries under appeal, taken as a whole, constitute a final appealable order.
{¶23}. The existence of a final appealable order is a jurisdictional question that an appellate court can raise sua sponte. Savage v. Cody–Ziegler, Inc., 4th Dist. Athens No. 06CA5, 2006-Ohio-2760, 2006 WL 1514273, ¶ 31. As a general rule, a judgment that leaves issues unresolved and contemplates that further action must be taken is not a final appealable order. See Moscarello v. Moscarello, 5th Dist. Stark No. 2014CA00181, 2015–Ohio–654, ¶ 11, quoting Rice v. Lewis, 4th Dist. Scioto No. 11CA3451, 2012–Ohio–2588, ¶ 14 (additional citations omitted). An order of a court is a final appealable order only if the requirements of both
{¶24}.
{¶25}. “When more than one claim for relief is presented in an action * * * whether arising out of the same or separate transactions, or when multiple parties are involved, the court may enter final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay. In the absence of a determination that there is no just reason for delay, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties, shall not terminate the
{¶26}. As indicated above, the main judgment entry under appeal in the case sub judice is the twenty-seven page decision of April 28, 2014, supplemented by the judgment entry addressing attorney fees issued July 9, 2014. Neither judgment entry includes a
{¶27}. Our primary focus is presently on paragraph six of the April 28, 2014 judgment entry, which orders the following:
{¶28}. “6. That Defendant [Glenn, Jr.] be removed as trustee and a suitable successor trustee be appointed by the Court (Defendant shall be removed but will be discharged only after the Court approves the comprehensive accounting of Trust expenses referenced above and Defendant files the Amended Estate Tax Return);”
{¶29}. Judgment Entry, April 28, 2014, at 27 (emphasis added).
{¶30}. The above language thus leaves two significant matters for future action or determination by the trial court, namely, (1) the “approval” of the trust accounting and (2) the appointment of the successor trustee.
{¶31}. Regarding the accounting approval requirement, it is not clear to us whether the trial court intended to issue another judgment entry on that issue, although the record reveals that appellant did file an accounting via a “notice of compliance” on May 28, 2014.
{¶32}. More importantly, however, we find appellee‘s specific claim for appointment of herself as trustee (see “Seventh Cause of Action” at page 6 of the
{¶33}. The Ohio Supreme Court has aptly recognized that “[f]or purposes of
{¶34}. Because the probate court‘s April 28, 2014 and July 9, 2014 judgment entries in the case sub judice have not disposed of all the claims in appellee‘s complaint, and neither contain
{¶35}. Accordingly, upon review, we hold a final appealable order does not exist warranting our review.
{¶36}. We therefore find the arguments raised in Appellant‘s and Appellee/Cross-Appellant‘s Assignments of Error are premature.
{¶37}. For the reasons stated in the foregoing opinion, the appeal of the judgment of the Court of Common Pleas, Probate Division, Stark County, Ohio, is dismissed.
By: Wise, J.
Gwin, P. J., and
Baldwin, J., concur.
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