Giffin v. Mull
| Decision Date | 17 December 2015 |
| Docket Number | No. 15 BE 11.,15 BE 11. |
| Parties | David R. GIFFIN, as Trustee of the Marie F. Mull Revocable Trust et al., Plaintiffs–Appellees, v. W. Quay MULL II, et al., Defendants–Appellants. |
| Court | Ohio Court of Appeals |
Stephen F. Ban, Metz, Lewis, Brodman, Must, O'Keefe, LLC, Pittsburgh, PA, Daniel R. Swetnam, Ice Miller, LLP, Todd K. DeBoe, Asst. Atty. Gen., Office of the Ohio Atty. Gen., Wade Harrison, Columbus, OH, Erik Schramm, Hanlon, Estadt, McCormick, & Schramm Co., LPA, St. Clairsville, OH, Patricia Gibson, pro se, Austin, TX, for Plaintiff–Appellee.
Charles Bean, Thornburg & Bean, David K. Liberati Assistant Prosecuting Attorney, Eric Costine The Costine Law Firm, St. Clairsville, OH, Richard A. Myser, Fregiato, Myser and Davies, Bridgeport, OH, for Defendant–Appellant.
ROBB
, J.
{¶ 1} Defendants–Appellants Thoburn United Methodist Church, St. Clairsville Public Library and the House of the Carpenter (“Charities”) appeal the decision of Belmont County Probate Court denying their motion for summary judgment and granting both Plaintiff–Appellee David R. Giffin, Trustee of the Marie F. Mull Revocable Trust and Defendant–Appellee W. Quay Mull's motions for summary judgment. There are two issues in this case.
{¶ 2} The first is whether a properly executed amendment to an improperly executed agreement validates the original improperly executed agreement. Specifically, in this case there was agreement between husband and wife that their wills and revocable trusts could not be modified upon the death of the first spouse (“Family Agreement”). The Family Agreement was not executed in accordance with Florida law. However, prior to the death of husband, the parties amended the Family Agreement and properly executed that amendment. The amended Family Agreement ratified and confirmed the original Family Agreement, except for the specified changes in the amendment. The probate court determined, as a matter of law, that the amendment republished the original Family Agreement and was binding.
{¶ 3} The second issue is whether the probate court abused its discretion in failing to remove Appellee Giffin as trustee of Marie Mull's trust. This issue raises two questions. First, whether the probate court's denial of a motion to remove is a final appealable order that should have been appealed earlier. And second, whether Appellants Charities had standing to seek removal.
{¶ 4} For the reasons expressed below, the probate court's decisions are hereby affirmed. The grant of summary judgment for Appellees Quay Mull and Giffin is affirmed because the amendment incorporated the Family Agreement and was binding. As for the motion to remove Appellee Giffin as trustee, the appeal of the trial court's order denying the motion was untimely.
{¶ 5} William and Marie Mull, during their marriage, accumulated significant assets. Appellee Giffin was their financial advisor since 1983 or 1984. It appears his advice helped in the accumulation of their wealth.
{¶ 6} In 1987, William and Marie decided to enter into a contract regarding their estate planning and agreed to adopt similar revocable trusts. 10/1/87 Family Agreement. The Family Agreement provided upon the death of the first dying spouse, the assets of that dying spouse would transfer to surviving spouse's revocable trust. 10/1/87 Family Agreement ¶ C. Upon the death of the first spouse, the Family Agreement could not be changed, modified or terminated. 10/1/87 Family Agreement ¶ D. Also, upon the death of the first dying spouse, the survivor could not revoke or modify their revocable trust. 10/1/87 Family Agreement ¶ 4.
{¶ 7} The Family Agreement was signed by William and Marie. However, it was not witnessed or notarized.
{¶ 8} Both parties executed their revocable trusts that same day, October 1, 1987. Appellee Quay Mull (William's son from a previous marriage) was the major beneficiary (50%) of the trusts. Appellants Charities were not beneficiaries of these trusts. Bill was named the trustee of his trust and Marie was named the trustee of her trust.
{¶ 9} On September 13, 1993, William and Marie executed an Amendment to the Family Agreement, dated October 1, 1987. In this Amendment, the parties agreed to exempt any tangible personal property from the Family Agreement. 9/13/93 Amendment ¶ 1. The second paragraph of the Amendment states the parties “ratify and confirm the Agreement of October 1, 1987, except as set forth herein.”
{¶ 10} This agreement was signed by both William and Marie, witnessed by two witnesses and accompanied by a “SELF–PROOF AFFIDAVIT” that was signed witnessed, and notarized.
{¶ 11} William and Marie then executed a First Amendment to the Revocable Trusts on September 13, 1993 (First Amendment). Beneficiaries were added to the trusts; however, Appellee Quay Mull was still to receive 50%. Appellant Thoburn United Methodist Church was the only charity listed as a beneficiary in the First Amendment.
{¶ 12} William Mull died September 26, 1997.
{¶ 13} After his death, Marie amended her trust two times, once on March 22, 2002 (Second Amendment) and once on November 3, 2011 (Third Amendment). Both of these amendments excluded Appellee Quay Mull as a beneficiary. It appears that Marie also excluded all of William's family as beneficiaries. All of Appellants Charities were named as beneficiaries in the Second Amendment. However, in the Third Amendment only Appellants Thoburn United Methodist Church and St. Clairsville Public Library were named as beneficiaries; Appellant House of the Carpenter was not named as a beneficiary in that amendment.
{¶ 14} Appellee Giffin became the successor trustee of Marie's revocable trust on September 27, 2010. This was after Marie removed herself as trustee. Under the 1993, 2002, and 2011 amendments to the Trust, Giffin is named as successor trustee.
{¶ 15} Marie was declared incompetent on July 25, 2012.
{¶ 16} It appears from the briefs and filings that Marie is still alive and incompetent.
{¶ 17} In November 2012, Appellee Giffin, in his capacity as Trustee, filed a complaint asking for the probate court to declare which trust of Marie Mull was controlling and whether the Family Agreement was valid and enforceable. The named defendants were the beneficiaries of the 1987 Trust, and the 1993, 2002, and 2011 Amendments to the Trust, which included Appellee Quay Mull and Appellants Charities.1
{¶ 18} Appellee Quay Mull and Appellants Charities filed answers to the complaint. 1/2/13 St. Clairsville Library answer; 1/4/13 Quay Mull answer; 1/11/13 Thoburn United Methodist Church answer; 2/22/13 The House of the Carpenter answer.
{¶ 19} Thereafter, Appellants Charities moved to remove Appellee Giffin as trustee. 9/9/13 Motion. They claimed Appellee Giffin had a conflict of interest because during his deposition he stated that he made personal commitments to William that he would not permit Marie to remove Appellee Quay Mull as a beneficiary of the trust. Also, they alleged Appellee Giffin had a conflict of interest because Marie's trust owns stock in Appellee Giffin's company.
{¶ 20} Appellee Giffin filed a motion in opposition to his removal arguing that there is no conflict of interest, he has not committed a “serious breach of trust,” and Appellants Charities have no legal standing because one or two of the charities have no interest in the trust. 10/3/13 Memo in Opposition to Remove Trustee.
{¶ 21} Appellants Charities filed a response and requested a hearing on the matter. 10/15/13 Motion.
{¶ 22} A hearing occurred on October 18, 2013. Following the hearing, the probate court found Appellants Charities had standing to raise the issue. However, the probate court denied the request to remove Appellee Giffin as trustee. 10/23/13 J.E.
{¶ 23} The parties then filed their respective motions for summary judgment. In their motions for summary judgment, Appellees Quay Mull and Giffin argued the Family Agreement was validated by republication. 11/21/14 Quay Motion for Summary Judgment; 11/24/14 Giffin Motion for Summary Judgment. Both asserted the 1993 First Amended Trust is the controlling trust. Conversely, Appellants Charities asserted the Family Agreement was void and could not be validated by republication. 12/27/13 Charities Motion for Partial Summary Judgment; 11/20/14 Second Motion for Partial Summary Judgment.
{¶ 24} The probate court held a hearing on the motions January 30, 2015. On February 4, 2015, it held that Florida law was controlling because the Mulls were residents of Florida when the 1987 and 1993 documents were executed. It found that although the 1987 Family Agreement was not executed in accordance with Florida law, it was validated when the parties amended the Family Agreement in 1993, properly executed the Amendment, and stated in the Amendment that the prior Family Agreement was ratified and confirmed. 2/4/15. Accordingly, the probate court granted summary judgment for Appellees Giffin and Quay Mull.
{¶ 25} Appellants Charities timely appealed the February 4, 2015 decision.
“The court below erred in not holding the “1987 Side Agreement” [Family Agreement] void since the Mulls were Florida residents and the same did not comply with Florida law in that it was improperly executed.”
{¶ 26} This assignment of error raises two core issues. The first is what choice of law applies to the Family Agreement. Is it Florida or Ohio law? Second, if Florida law is applicable, what is the effect of the improperly executed Family Agreement? Did the 1993 Amended Agreement render the Family Agreement enforceable?
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