Cause of Action Summaries
Conversion is the wrongful exercise of dominion over property to the exclusion of the rights of the owner, or withholding it from her possession under a claim inconsistent with her rights. This definition can be broken down into three basic elements: (1) a defendant’s exercise of dominion or control (2) over a plaintiff’s property (3) in a manner inconsistent with the plaintiff’s rights of ownership. If a defendant comes into possession of property lawfully, a plaintiff must prove two additional elements to establish conversion: (1) that it demanded the return of the property after the defendant exercised dominion or control over the property and (2) that the defendant refused to deliver the property to the plaintiff. Simek v. Orthopedic & Neurological Consultants, Inc., 10th Dist. Franklin No. 17AP-671, 2019-Ohio-3901, citing Joyce v. Gen. Motors Corp., 49 Ohio St.3d 93, 96, 551 N.E.2d 172 (1990).
II. Construction of Trust
The cardinal rule in the construction of a will is that the meaning and intention of the testator must be ascertained if possible, and, if not in contravention of some established rule of law, or public policy, must be given effect. The intention which controls is that which is manifest, either expressly or by necessary implication, from the language of the will. A will cannot be construed by a mere surmise, conjecture, or supposition, as to the intent of the testator, or as sometimes said, the testator’s intention must be ascertained from the four corners of the will, or from the language of the document as a whole. Carr v. Stradley, 10th Dist. Franklin No. 75AP-579, 1976 WL 190322 (Nov. 2, 1976). Courts have applied the same set of principles to trusts. See, e.g., Evan v. Evan, 4th Dist. Jackson Nos. 12CA5, 12CA6, 2014-Ohio-4450.
III. Constructive Trustee
A “constructive trust” is a trust by operation of law which arises contrary to intention and in invitum, against one who, by fraud, actual or constructive, by duress or abuse of confidence, by commission of wrong, or by any form of unconscionable conduct, artifice, concealment, or questionable means, or who in any way against equity and good conscience, either has obtained or holds the legal right to property which he out not, in equity and good conscience, hold and enjoy. This type of trust is usually invoked when property has been acquired by fraud. However, a constructive trust may also be imposed where it is against the principles of equity that that the property be retained by a certain person even though the property was acquired without fraud. The party seeking to have a constructive trust imposed bears the burden of proof by clear and convincing evidence. Bowens. v. Bowens, 10th Dist. Franklin No. 14AP-45, 2019-Ohio-3910, citing Ferguson v. Owens, 9 Ohio St.3d 223, 225-26, 459 N.E.2d 1293 (1984).
IV. Tortious Interference with Expected Inheritance
The elements of intentional interference with an expectancy of inheritance are: (1) an existence of an expectancy of inheritance in the plaintiff; (2) an intentional interference by a defendant(s) with that expectancy of inheritance; (3) conduct by the defendant involving the interference which is tortious, such as fraud, duress or undue influence, in nature; (4) a reasonable certainty that the expectancy of inheritance would have been realized, but for the interference by the defendant; and (5) damage resulting from the interference. In re Guardianship Cohodes, 10th Dist. Franklin, No. 13AP-519, 2014-Ohio-277, citing Firestone v. Galbreath, 67 Ohio St.3d 87, 616 N.E.2d 202 (1993).
V. Intentional Infliction of Emotional Distress
To establish a claim for intentional infliction of emotional distress, the plaintiff must prove the following four elements by a preponderance of the evidence: a) that the actor either intended to cause emotional distress or knew or should have known that the actions taken would result in serious emotional distress to the plaintiff; b) that the actor’s conduct was extreme and outrageous, that it went beyond all possible bounds of decency and that it can be considered as utterly intolerable in a civilized community; c) that the actor’s actions were the proximate cause of the plaintiff’s psychic injury; and d) that the mental anguish suffered by plaintiff is serious and of a nature that no reasonable person could endure it. Serious emotional distress includes traumatically induced neurosis, psychosis, chronic depression, and phobia. Williams v. National Association for Advancement of Colored People, 10th Dist. Franklin No. 18AP-476, 2019-Ohio-1897, citing Yaeger v. Local Union 20, Teamsters, Chauffeurs, Warehousemen & Helpers of Am., 6 Ohio St.3d 369, 453 N.E.2d 666 (1983).
VI. Breach of Fiduciary Duty
A claim of a breach of fiduciary duty is basically a claim of negligence. The essential elements of a claim of breach of fiduciary duty are: 1) the existence of a duty arising from a fiduciary relationship, (2) the failure to observe the duty, and (3) an injury resulting proximately therefrom. A fiduciary is a person having a duty, created by his undertaking, to act primarily for the benefit of another in matters connected with his undertaking. A fiduciary relationship forms when special confidence and trust is reposed in the integrity and fidelity of another and there and there is a resulting position of superiority or influence, acquired by virtue of this special trust. Ettayem v. Land of Ararat Investment Group, Inc., 10th Dist. Franklin No. 19AP-427, 2020-Ohio-3006.
VII. Breach of the Duty of Loyalty
In Ohio, it is an implied condition of employment that an employee will carry out his duties in good faith and not act to the detriment of his employer. The common-law duty of loyalty is breached when the employee improperly competes with his or her current employer, while still employed. For example, the employee cannot solicit customers of his employer prior to his resignation, and after resigning, cannot disclose or use trade secrets or confidential information belonging to his former employer for the benefit of a competing business. Other examples of breaches include taking company property, misusing company funds, or taking kickbacks. Berge v. Columbus Community Cable Access, 136 Ohio App.3d 281, 736 N.E.2d 517 (10th Dist.1999). Alternatively, under R.C. 5808.02, a trustee shall administer the trust solely in the interests of the beneficiaries.
VIII. Breach of Trust
The court may order appropriate relief under R.C. 5810.01(B) to protect the trust, in the event of a breach of trust by a trustee. R.C. 5810.01 to 5810.12 defines a breach of trust committed by a trustee, the remedies available to address such breach, the liability of the trustee to the beneficiaries, the award of a court as a result of a judicial proceeding involving such breach, and exculpatory provisions wherein the trustee is not liable to said beneficiaries. In general, a violation by a trustee of a duty that trustee owes to a beneficiary is a breach of trust. Upon acceptance of a trusteeship, the trustee shall administer the trust in good faith, in accordance with its terms and purposes and the interests of the beneficiaries. See, e.g., Tomazic v. Rapoport, 8th Dist. Cuyahoga No. 97937, 2012-Ohio-4402 (finding breach of trust where appellee trustee never provided for accounting of trust expenditures, attempted to deny standing to beneficiary, etc.).
IX. Voidable Transaction by Trustee
As a fiduciary, a trustee is ordinarily completely prohibited from any self-dealing with trust property. Further, where a trustee is found to have engaged in a self-dealing transaction, the transaction is voidable at the election of the beneficiaries without reference to whether the transaction was actually in bad faith or the beneficiaries were actually harmed. R.C. 5808.02(B). If the transaction was profitable, the benefits will be treated as having accrued to the trust, and if the transaction was a losing one, the trustee will be personally liable for the loss. In re Binder’s Estate, 137 Ohio St. 26, 37, 27 N.E.2d 929 (1940).
X. Commingling of Assets by Trustee
Under R.C. 5808.10, a trustee shall keep adequate records of the administration of the trust. (A). And the trustee shall keep trust property separate from the trustee’s own property. (B). Except as otherwise provided in division (D) of this section and in section 2131.21 of the Revised Code, a trustee not subject to federal or state banking regulation shall cause the trust property to be designated so that the interest of the trust, to the extent feasible, appears in records maintained by a party other than a trustee or beneficiary. (C). Finally, if the trustee maintains records clearly indicating the respective interests, a trustee may invest as a whole the property of two or more separate trusts. (D). See, e.g., McHenry v. McHenry, 5th Dist. Stark No. 2016CA00158, 2017-Ohio-1534 (finding a violation of R.C. 5808.10(B) when appellant transferred the settlor’s Cadillac into his own name).
XI. Reasonable Care, Skill, and Caution
In Ohio, a trustee shall administer the trust as a prudent person would and shall consider the purposes, terms, distributional requirements, and other circumstances of the trust. In satisfying this standard, the trustee shall exercise reasonable care, skill, and caution. R.C. 5808.04. Moreover, a trustee who has special skills or expertise, or is named trustee in reliance upon the trustee’s representation that the trustee has special skills or expertise, shall use those special skills or expertise. R.C. 5808.06.
XII. “Detrimental Reliance”
As a matter of law, Ohio does not recognize a cause of action for “detrimental reliance.” Detrimental reliance arises as an element of various causes of action (e.g., promissory estoppel, misrepresentation, etc.) but is not a cause of action unto itself. The doctrine appears most frequently as the final element in a claim for promissory estoppel. In order to prove a claim of promissory estoppel, the following elements must be established: (1) a clear and unambiguous promise; (2) reliance on the promise; (3) that the reliance is reasonable and foreseeable; and (4) that the party was injured by their reliance. Steele v. Mara Ents., Inc., 10th Dist. Franklin 09AP-102, 2009-Ohio-5716.
XII. Partition of Trust
R.C. 5808.16? Unsure?
Without limiting the authority conferred by section 5808.15 of the Revised Code, a trustee may do all of the following . . . (C) Exchange, partition, or otherwise change the character of trust property . . .
Plaintiff Elizabeth Koeberer by and through her counsel of record and files this civil action against her siblings, Edson Weir and Christine Strom; and as a party of interest, against Robert Weir, the current Trustee of the “Elizabeth Koeberger Trust”, attached hereto as Exhibit A. Her family and descendants are included as necessary parties to this civil action.
l. Koeberer is an adult individual who resides in Franklin County, City of Columbus and State of Ohio.
2. Ruth Wilson is the mother of Edson Weir, Christine Strom and the Plaintiff.
3. Ruth Wilson died on October—-, 2013.
4. Pursuant to a document entitled the Elizabeth Koeberger Trust, attached hereto as Exhibit A, as amended, Robert Weir is the current trustee of this trust
after her brother, Edson Weir resigned on February 1, 2014. (break this up)
5. Elizabeth Koeberer, the Plaintiff herein has never been adjudged incompetent.
6. After the death of Ruth Wilson, a life insurance policy was distributed to the three children pursuant to the beneficiary designation by NWMLife.
7. A check was issued on— to___ at the address of —-
8. Did not authorize RW to act as her power of attorney.
9. Said distribution is a personal asset of the plaintiff, individually.
10. The check no. was negotiated by Defendant Robert Weir.
7. Check was deposited in Iolta
11. Second deposit into “trust” without her authorization.
12. Weir wrongfully exercised dominion and control over this property (Exh. B)
In the amount of —-
13. The unauthorized deposit of this personal check made payable only to Elizabeth Koeberer constitutes unlawful commingling of her personal assets which inconsistent with her personal right of ownership.
14. Elizabeth Koeberer demands have been rejected for the return of her personal assets.
Allege that she is entitled to her return of the amount of the check.
CONSTRUCTION OF TRUST
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