[Cite as In re McCauley Irrevocable Trust, 2014-Ohio-5123.]


                                       COURT OF APPEALS
                                      STARK COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


IN RE: CLETUS P. & MARY A.                        :           JUDGES:
MCCAULEY IRREVOCABLE TRUST                        :
                                                  :           Hon. William B. Hoffman, P.J.
                                                  :           Hon. Patricia A. Delaney, J.
                                                  :           Hon. Craig R. Baldwin, J.
                                                  :
                                                  :
                                                  :           Case No. 2014CA00031
                                                  :
                                                  :           OPINION



CHARACTER OF PROCEEDING:                                      Appeal from the Stark County
                                                              Common Pleas Court, Probate
                                                              Division 208532, 219397



JUDGMENT:                                                     Affirmed



DATE OF JUDGMENT:                                             November 18, 2014



APPEARANCES:

For Plaintiffs-Appellants                                     For Defendant-Appellee

CRAIG T. CONLEY                                               JOHN R. FRANK
604 Huntington Plaza                                          T.K. Harris Building, Suite 102A
220 Market Ave. South                                         3930 Fulton Drive, NW
Canton, OH 44702                                              Canton, OH 44718
Stark County, Case No. 2014CA00031                                                      2




Baldwin, J.

       {¶1}   Appellants Emily R. Clark and Jennifer M. Fricke, trust beneficiaries of the

Cletus P. & Mary A. McCauley Irrevocable Trust, appeal a judgment of the Stark County

Probate Court consolidating Probate Case Nos. 208532 and 219397, and appeal a

judgment denying their motion for an immediate transfer of trust assets. Appellee is

John R. Frank, Second Successor Trustee of the trust.

                              STATEMENT OF FACTS AND CASE

       {¶2}   Paula Clark is one of four children of Mary and Cletus McCauley.

Appellants Emily R. Clark and Jennifer M. Fricke are the daughters of Paula Clark.

       {¶3}   A will executed by Cletus and Mary on May 29, 2007 gave specific sums

of money to their children. The remainder was to pour over into the Cletus P. McCauley

Trust. Also on May 29, 2007, Cletus and Mary created an Irrevocable Trust Agreement

that primarily benefited their disabled adult son Kevin during his lifetime.

       {¶4}   Mary McCauley died on August 9, 2008. Cletus McCauley died on

December 23, 2008. Paula Clark was appointed to serve as the Executrix and opened

Cletus McCauley's estate in the Stark County Probate Court on December 30, 2008.

Raymond McCauley was appointed the Trustee of the McCauley Irrevocable Trust. On

September 15, 2008, Paula Clark was appointed the first successor trustee for the

McCauley Irrevocable Trust because of Raymond McCauley's health issues.

       {¶5}   Case No. 208532 was filed on March 24, 2010, by Kevin McCauley’s

court-appointed guardians, seeking removal of Ms. Clark as first successor trustee, as

well as an accounting and damages for breach of fiduciary duty. Ms. Clark resigned,
Stark County, Case No. 2014CA00031                                                     3


and the Probate Court appointed appellee as second successor trustee on November

18, 2010.     The case against Paula Clark was then stayed due to her filing for

bankruptcy.

       {¶6}      Kevin McCauley passed away on September 6, 2013. On September 20,

2013, appellants filed a declaratory judgment action in the Stark County Common Pleas

Court General Division under Case No.2013CV02559, alleging that appellee as second

successor trustee breached his fiduciary duties to the trust beneficiaries. On November

8, 2013, the General Division transferred the declaratory judgment action to the Probate

Court to be consolidated with Probate Case No. 208532. On November 21, 2013,

appellants filed a declaratory judgment action against appellee in Probate Court Case

No. 219397. The trial court determined that General Division Case No.2013CV02559

should be consolidated with Probate Court Case No. 219397, instead of Case No.

208532. On February 3, 2014, the trial court consolidated Case No. 208532 with Case

No. 219397. The judgment consolidating the cases is the subject of this appeal.

       {¶7}      On January 22, 2014, appellants filed a motion for immediate transfer of

trust assets in Case No. 219397. The court overruled the motion, and appellants filed

an appeal from this judgment. However, on July 15, 2014, Judge Stormer sitting by

assignment in Case No. 220494, responded to appellee’s request for instructions by

ordering the distribution of one half of the trust’s balance, or $129,000, to the

beneficiaries.

       {¶8}      Appellants assign two errors:

       {¶9}      “I.   THE TRIAL COURT ERRED IN DENYING, BY AND THROUGH ITS

CONSOLIDATION BELOW OF TWO CASES, APPELLANTS’ MOTION TO DISMISS.
Stark County, Case No. 2014CA00031                                                          4


       {¶10} “II.   THE TRIAL COURT ERRED IN DENYING APPELLANTS’ MOTION

FOR IMMEDIATE TRANSFER OF TRUST ASSETS.”

                                                 I.

       {¶11} In their first assignment of error, appellants argue that the court erred in

denying their motion to dismiss on the grounds of lack of subject matter jurisdiction, and

also argue that the court abused its discretion in consolidating Case Nos. 208532 and

219397 because they lacked commonality of parties and issues.

       {¶12} In their reply brief, appellants concede that the court had jurisdiction over

the trust pursuant to this Court’s decision in In re Cletus P. McCauley and Mary A.

Mcauley Irrevocable Trust, 5th Dist. Stark No. 2013CA00237, 2014-Ohio-3489.

       {¶13} Appellants also argue that the court erred in consolidating the two cases

because of lack of commonality of parties and issues.

       {¶14} A consolidation of cases lies within the sound discretion of the trial court.

Director of Highways v. Kleines, 38 Ohio St.2d 317, 313 N.E.2d 370 (1974). An abuse

of   discretion implies that the court's attitude is unreasonable, arbitrary or

unconscionable.     Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140

(1983).

       {¶15} Consolidation of cases is controlled by Civ.R. 42(A), which states, “When

actions involving a common question of law or fact are pending before a court, that

court after a hearing may order a joint hearing or trial of any or all the matters in issue in

the actions; it may order some or all of the actions consolidated; and it may make such

orders concerning proceedings therein as may tend to avoid unnecessary costs or

delay.”
Stark County, Case No. 2014CA00031                                                        5


       {¶16} The trial court found that the issues in the two cases are identical or

closely related, as both include a demand for accounting, a demand for distribution, an

alleged breach of fiduciary duty, and a request for removal of the trustee. The court

noted that counsel for appellants acknowledged that the issues pending in Case No.

208532 could be heard in Case No. 219397.                Further, litigation surrounding the

McCauley estate and/or trust has resulted in multiple case filings in the Probate Court,

the Common Pleas Court General Division, and this Court. The trial court did not abuse

its discretion in consolidating the instant cases based on their commonality of issues

and the court’s intention to streamline the litigation surrounding the trust.

       {¶17} The first assignment of error is overruled.

                                                  II.

       {¶18} In their second assignment of error, appellants argue that the trial court

erred in overruling their motion for a distribution of trust funds.

       {¶19} In Case No. 220494, also involving the subject trust, Judge Stormer

ordered a distribution of one half of the balance of the trust funds to the beneficiaries,

including appellants herein.       Because appellants received the distribution in a

companion case, the court’s failure to order distribution in this case is moot.
Stark County, Case No. 2014CA00031                                              6


      {¶20} The second assignment of error is overruled. The judgment of the Stark

County Common Pleas Court, Probate Division, is affirmed.      Costs assessed to

appellants.

By: Baldwin, J.

Hoffman, P.J. and

Delaney, J. concur.
