[Cite as Johnson v. Kuehn, 2020-Ohio-3757.]




            IN THE COURT OF APPEALS OF OHIO
                            SEVENTH APPELLATE DISTRICT
                                 CARROLL COUNTY

                                  DIANE MARIE JOHNSON,

                                        Plaintiff-Appellant,

                                                  v.

                                     JEFFREY W. KUEHN,

                                      Defendant-Appellee.


                       OPINION AND JUDGMENT ENTRY
                                       Case No. 19 CA 0935


                                    Civil Appeal from the
                        Court of Common Pleas of Carroll County, Ohio
                                   Case No. 18 CVH 29190

                                       BEFORE:
                  Carol Ann Robb, Gene Donofrio, Cheryl L. Waite, Judges.


                                              JUDGMENT:
                                                Affirmed



 Atty. Sean Buchanan, Slater & Zurz, LLP, One Cascade Plaza, Suite 2210, Akron,
 Ohio 44308 for Plaintiff-Appellant, and

 Atty. Edgar Moore, Jr. and Atty. Timothy Moore, Bixler, Moore, LLC, 4505 Stephen
 Circle NW, Suite 101, Canton, Ohio 44718 for Defendant-Appellee.
                                                                                      –2–


                                  Dated: July 10, 2020


 Robb, J.

       {¶1}    Plaintiff-Appellant Diane Marie Johnson appeals the decision of the Carroll
County Common Pleas Court granting summary judgment for Defendant-Appellee Jeffrey
Kuehn. The issue in this appeal is whether the trial court erred in granting summary
judgment for Appellee. For the reasons expressed below, the trial court’s decision is
affirmed.
                                   Statement of the Case
       {¶2}     Appellant and Appellee are brother and sister. Their father, Heinrich
Kuehn, died in January 2018 with both probate and non-probate assets. At issue in this
case is the non-probate assets, which are two Edward Jones accounts and Heinrich’s
home. Appellee was listed as the beneficiary on both Edward Jones accounts. In 2010,
prior to the onset of Alzheimer’s, Heinrich executed a Transfer on Death Deed for his
house naming Appellee beneficiary.
       {¶3}    Following Heinrich’s death, Appellant filed a complaint against Appellee
asserting either an express or implied trust was created and as such, one-half of the non-
probate assets were to be held in trust for Appellant’s benefit. She also asserted Appellee
would be unjustly enriched if he was permitted to keep all the non-probate assets. 12/2/18
Complaint. It is undisputed that Heinrich did not have a written trust providing for the
distribution of his non-probate assets.
       {¶4}    Appellee answered denying that an express or implied trust was
created. 1/28/19 Answer.
       {¶5}     Both Appellant and Appellee were deposed.
       {¶6}    Thereafter, Appellee filed a motion for summary judgment arguing there
was no evidence that an express or implied trust was created. 7/26/19 Defendant
Summary Judgment Motion.
       {¶7}     Appellant filed a response asserting there was a genuine issue of material
fact as to whether an express or implied trust was created. 8/26/19 Plaintiff Response to
Summary Judgment Motion. She supported her position with statements from Appellee
indicating that Heinrich wanted Appellee to help Appellant if she ever needed it. She also


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pointed to the Application for Authority to Expend Funds filed with the Probate Court
where Appellee asked for permission to rent his father’s house to tenants. At the time,
Heinrich resided at a facility for patients with Alzheimer’s Disease. In the application,
Appellee stated, “Seek authority to rent the ward’s home or apartments for $600/month
to offset his increase in costs to a new facility. The ward would like to retain his home for
his daughter in the future and not sell it. Per local realtors, his home in current condition
could only rent for that much.” Exhibit B to Jeffrey Kuehn’s Deposition.
       {¶8}     Appellee filed a reply re-asserting there was no evidence that an express
or implied trust was created. 9/20/19 Defendant Reply in Support of Summary Judgment.
He argued the statements made by his father to help his sister did not create an express
or implied trust. 9/20/19 Defendant Reply in Support of Summary Judgment. In response
to his statement in Exhibit B, Application for Authority to Expend Funds, he pointed to his
deposition testimony explaining that Appellant had told him that she or her family might
want to purchase the home and he wanted to give her the opportunity to do so. Jeffrey
Kuehn Depo. 38-39.
       {¶9}     The     trial   court   granted     Appellee’s    motion     for    summary
judgment. 10/11/19 J.E. As to an express trust, the trial court concluded that neither
party produced evidence that Heinrich made an explicit declaration of trust for Appellant’s
benefit or intended to create a trust for her benefit. The trial court explained:

       The Plaintiff was asked several times in her deposition if she can recall
       anything that Heinrich told her that would indicate that he wanted the
       property to be held by Defendant for Plaintiff’s benefit. Plaintiff’s response
       to that line of questioning was always “no” or “I do not recall”.

       The Defendant was asked during his deposition about the elements of an
       Express Trust. Specifically, he admitted that Heinrich asked Defendant to
       take   care of Plaintiff after Heinrich’s death. However, there was no
       evidence of any explicit declaration that Heinrich intended to create a trust
       for Plaintiff. Instead Defendant described Heinrich’s desire for Defendant
       to help Plaintiff if she needed it, in the way any normal brother and sister
       would help each other.


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10/11/19 J.E.

       {¶10}    The court also found that no implied trust was created. The court noted
the evidence was clear that in October 2010 Heinrich named Appellee as beneficiary of
the transfer on death deed. The evidence indicated Heinrich became angry at Appellant
because she wanted the house but was going to make him move out, so he intentionally
had the deed changed so she would not benefit. The trial court indicated there was no
evidence to suggest Appellee influenced this decision. Also, there was no evidence that
Appellee influenced Heinrich’s decision to name Appellee as beneficiary of the Edward
Jones accounts. Accordingly, the trial court found the elements of constructive trust did
not exist. 10/11/19 J.E.
       {¶11}    Appellant appeals the trial court decision to grant summary judgment in
Appellee’s favor.

                                    Assignment of Error

       {¶12}    “The Court erred in the application of the summary judgment standard to
this matter in granting summary judgment to the defendant.”
       {¶13}    The trial court held that the undisputed facts as a matter of law did not
result in an express oral trust or an implied constructive trust. Appellant finds fault with
that decision and asserts there is a genuine issue of material fact as to whether an
express oral trust or an implied trust was created. Appellee counters arguing the facts do
not rise to the level of creating an express oral trust or an implied constructive trust; there
is no genuine issue of material fact.
       {¶14}    We review a trial court's summary judgment decision de novo, applying
the same standard used by the trial court. Ohio Govt. Risk Mgt. Plan v. Harrison, 115
Ohio St.3d 241, 2007-Ohio-4948, 874 N.E.2d 1155, ¶ 5. A motion for summary judgment
is properly granted if the court, upon viewing the evidence in a light most favorable to the
nonmoving party, determines that: (1) there are no genuine issues as to any material
facts; (2) the movant is entitled to judgment as a matter of law; and (3) the evidence is
such that reasonable minds can come to but one conclusion and that conclusion is




Case No. 19 CA 0935
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adverse to the opposing party. Civ.R. 56(C); Byrd v. Smith, 110 Ohio St.3d 24, 2006-
Ohio-3455, 850 N.E.2d 47, ¶ 10.
       {¶15}    This case involves the assertion that a trust was created to benefit
Appellant. The Ohio Supreme Court has defined a trust as “the right, enforceable in
equity, to the beneficial enjoyment of property, the legal title to which is in another.” Ulmer
v. Fulton, 129 Ohio St. 323, 339, 195 N.E. 557 (1935). There are two types of trusts,
express and implied. Brate v. Hurt, 174 Ohio App.3d 101, 2007-Ohio-6571, 880 N.E.2d
980, ¶ 25 (12th Dist.); Lawrence v. Bailey, 3d Dist. Marion No. 9-99-37, 2000 WL 51803
(Jan 25, 2000). “An express trust arises by reason of a manifested intention to create it.
Constructive trusts are imposed irrespective of intention.” Peterson v. Teodosio, 34 Ohio
St.2d 161, 172, 297 N.E.2d 113 (1973). See also 91 Ohio Jurisprudence 3d , Trusts,
Section 5 (“Express trusts are those intentionally created by the direct and positive act of
the settlor by some writing, deed, will, or oral declaration, and are distinguishable from
the implied trusts or trusts by operation of law, resulting and constructive, in that resulting
trusts are founded upon the intention, implied in law, of the parties to the transaction, and
constructive trusts are founded upon fraud or wrongdoing irrespective of the intention of
the parties concerned.”).
       {¶16}    The analysis will begin with whether there was evidence presented that
creates a genuine issue of material fact as to whether an express oral trust was created.

                                    Express Oral Trust

       {¶17}    The party alleging the existence of an express oral trust has the burden of
proving, by clear and convincing evidence, that a trust was created and the terms and
conditions of that trust. In re Estate of Hoffman, 175 Ohio St. 363, 195 N.E.2d 106,
syllabus (1963); Boughman v. Boughman, 69 Ohio St. 273, 279, 69 N.E. 430
(1903). “Regardless of the mode of creation, it is indispensable that the elements of a
trust be established. Boughman at 280.
       {¶18}    The Ohio Supreme Court has set forth the elements of an express trust,
stating:




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       While its elements have been variously stated to constitute an express trust
       there must be an explicit declaration of trust, or circumstances which show
       beyond a reasonable doubt that a trust was intended to be created,
       accompanied with an intention to create a trust, followed by an actual
       conveyance or transfer of lawful, definite property or estate or interest,
       made by a person capable of making a transfer thereof, for a definite term,
       vesting the legal title presently in a person capable of holding it, to hold as
       trustee for the benefit of a cestui que trust or purpose to which the trust fund
       is to be applied; or a retention of title by the owner under circumstances
       which clearly and unequivocally disclose an intent to hold for the use of
       another.

Ulmer, 129 Ohio St. 323, 339–40, quoting 65 Corpus Juris, 231, § 21. See also 53 Ohio
Jurisprudence 2d, Trusts, Section 40 (1962). See also 91 Ohio Jurisprudence 3d, Trusts,
Section 49 (“Under Ohio law, four requirements are necessary to establish existence of
an express or technical trust: (1) an intent to create trust; (2) a trustee; (3) a trust res; and
(4) a definite beneficiary. An express trust is created by the act, consent, and mutual
understanding of the parties. To constitute an express trust, there must be an explicit
declaration of trust or circumstances which show beyond reasonable doubt that a trust
was intended to be created and that it was made by a person capable of making a
transfer.”).

       {¶19}    During her deposition, Appellant was asked whether she could recall
Heinrich indicating he wanted the property (house and/or the Edward Jones Accounts) to
be held for her benefit. Her answer was either “no” or “I do not recall.” Diane Johnson
Depo. 26, 27, 32, 33. She did acknowledge that she was aware that in 2010 Heinrich
executed a transferable on death deed for the house and named Appellee as the
beneficiary. Diane Johnson Depo. 30. Heinrich did not tell her why that was
occurring. Diane Johnson Depo. 30.
       {¶20}    Appellee’s testimony explained the circumstances that lead to the
execution of the 2010 transferable on death deed naming Appellee as the beneficiary. He
admitted that initially his father wanted Appellant to have the house. Jeffery Kuehn Depo.


Case No. 19 CA 0935
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33. Appellant had told Heinrich that her family really liked the house and would like to
live in it when he passed away. Jeffery Kuehn Depo. 33. However, around 2009 or 2010,
Appellant told Heinrich that they were moving out of state. Jeffery Kuehn Depo. 33.
Heinrich told her he did not understand and thought they wanted to live in his house.
Jeffery Kuehn Depo. 33. She responded by stating that maybe they would give the house
to her middle child and that he would remodel it and live there now. Jeffery Kuehn Depo.
33. Heinrich then asked her where he was supposed to live and she responded that he
would have to go live somewhere else. Jeffery Kuehn Depo. 33. Appellee explained:

       At that point he [Heinrich] became very angry and he wanted to make sure
       that he’d heard Diane correctly. And at that point he had called me up and
       he said, Jeff, I want you to come over here and talk with your sister. She’s
       here now. He called me up. I dropped what I was doing, drove an hour and
       half from the other side of Youngstown, came over and said, Diane, dad’s
       very upset about something about the house. Did you tell dad that you were
       kicking him out of his house? And she said, Well I don’t know what you
       mean. He said something about you’re going to give the house to Jason
       and he’s going to live in the house and he’s going to go somewhere else.
       And she said, Well, yeah, if Jason’s living here, dad would have to go
       somewhere else. I said, Diane, what you’re telling dad is that he’s going to
       have to leave his own house? She said, Well, I guess he would have to.

Jeffrey Kuehn Depo. 34-35.

       {¶21}    Appellee explained that Heinrich asked him if he wanted the house, to
which he responded that he did not, but if it was given to him he would either sell it or
utilize it as a rental property. Jeffrey Kuehn Depo. 35. Heinrich then executed the transfer
on death deed naming Appellee as beneficiary. Jeffrey Kuehn Depo. 35. Appellee
explained that Heinrich was so angry at Appellant that she and her family were going to
kick him out of his house that his response was to give it Appellee. Jeffrey Kuehn Depo.
35.




Case No. 19 CA 0935
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       {¶22}    This evidence clearly indicates that in 2010 there was no intention by
Heinrich to create an express oral trust regarding the house. The evidence in fact
suggests the opposite; there was a clear intention to not create a trust.
       {¶23}   Admittedly, during the deposition, Appellant submitted Plaintiff’s Exhibit B,
Application for Authority to Expend Funds. Appellee was named as Heinrich’s guardian
because Heinrich had developed Alzheimer’s Disease. Appellee filed this Application for
Authority to Expend Funds in the Stark County Probate Court on March 23, 2016. In this
application, he stated, “Seek authority to rent the ward’s home or apartments for
$600/month to offset his increase in costs to a new facility. The ward would like to retain
his home for his daughter in the future and not sell it. Per local realtors, his home in
current condition could only rent for that much.” Exhibit B to Jeffrey Kuehn’s Deposition.
Appellant asserts this language creates a genuine issue of material fact as to whether an
express oral trust was created.
       {¶24}    In making that argument, Appellant fails to acknowledge Appellee’s
testimony regarding this statement. He was asked if after the 2010 execution of the
transfer on death deed if there was any subsequent desire from Heinrich to give Appellant
the house and Appellee responded there was not. Jeffrey Kuehn Depo. 36. When asked
if that statement on the Application for Authority to Expend Funds meant Heinrich wanted
to give the house to Appellant, Appellee responded, “Maybe. Maybe it does. He still
hadn’t changed his mind on what he wanted to do with it, but at this point my father already
had Alzheimer’s and dementia and he said a lot of things.” Jeffrey Kuehn Depo. 37. This
statement indicates that if such an expression was made, it was when he had Alzheimer’s
and did not have the capacity to express an intention to create a trust for Appellant.
Furthermore, Appellee went on to explain that he did not make that statement about
wanting to keep the house as the result of an express statement from Heinrich about
keeping the house for Appellant’s benefit. Jeffrey Kuehn Depo. 38. Rather, he made the
statement because Appellant had expressed an intention for her or her children to buy
the house in the future. Jeffrey Kuehn Deop. 38.
       {¶25}   Appellant offers no evidence to dispute this testimony. She does not state
that she never wished to buy the house or that Heinrich had a lucid moment and
expressed an intention to create an express oral trust for her benefit regarding the



Case No. 19 CA 0935
                                                                                           –9–


house. Therefore, the trial court’s conclusion that there was no clear and convincing
evidence of the elements of an express oral trust was correct.
       {¶26}    As to the two Edward Jones accounts, the only potential evidence of an
intention to create or the creation of an express oral trust regarding these accounts is
Heinrich’s statements to Appellee to take care of his sister and her children, and to help
them. Appellee admits these statements were made, but indicates Heinrich meant to help
them if they got into trouble:

               He didn’t mention anything regarding money. He just mentioned
       helping them out in case they get into any kind of trouble. For my dad,
       trouble could have been any number of things, which would include, like I
       said, changing a light bulb or a stalled car or even helping them, you know,
       do their taxes, whatever, you know, you brought that up before. It could
       have been any number of things. My dad just said, in case they get into
       trouble, somebody’s probably going to need to be there, since I’m not
       going to be around, he wanted to know if I was still willing to help them,
       even though they had, you know, not really wanted to have any relationship
       with myself or my wife over the years, would I still be willing to help
       them. And I said, Dad, we’ve not been real close for these last ten years or
       so, and I said, I stepped up and helped you. I really wasn’t crazy about it,
       but I said, it’s the right thing to do because we’re family. And again, I’m still
       willing to do that.

Jeffrey Kuehn Depo. 56-57.

       {¶27}    Appellant offers no evidence to indicate what Heinrich meant when he
asked Appellee to help her and offers no evidence to dispute Appellant’s
interpretation. As stated above, her testimony is that she does not know if Heinrich ever
expressed an intention for the creation of a trust regarding the two Edward Jones
accounts or she cannot recall if he did.
       {¶28}    Accordingly, the trial court’s conclusion that Appellant did not show by
clear and convincing evidence that Heinrich intended to create or did create an express



Case No. 19 CA 0935
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trust for any of his property was correct. There is no genuine issue of material fact. The
argument to the contrary is meritless.

                                    Implied Trust

       {¶29}    There are two types of implied trusts: constructive and resulting. Gabel v.
Richley, 101 Ohio App.3d 356, 363, 655 N.E.2d 773 (2d Dist.1995).
       {¶30}   A constructive trust arises irrespective of the intention of the parties and is
imposed when a person holding title to property is subject to an equitable duty to convey
it to another on the ground that she would be unjustly enriched if she were permitted to
retain it. Id. The duty to convey the property may arise because it was acquired through
fraud, duress, undue influence, or mistake, through a breach of a fiduciary duty, or through
the wrongful disposition of another's property. Id. A constructive trust may also be
imposed “where it is against the principles of equity that the property be retained by a
certain person even though the property was acquired without fraud.” Fewell v. Gross,
12 Dist. Butler Nos. CA2006–04–096 and CA2006–05–103, 2007-Ohio-5788, ¶
12. Thus, a constructive trust “is an equitable remedy imposed to prevent fraud or unjust
enrichment.” Glick v. Dolin, 80 Ohio App.3d 592, 596, 609 N.E.2d 1338 (8th Dist.1992). A
party asserting the imposition of a constructive trust must prove its existence by clear and
convincing evidence. Fewell at ¶ 13.
       {¶31}    “A resulting trust has been defined as ‘one which the court of equity
declares to exist where the legal estate in property is transferred or acquired by one under
facts and circumstances which indicate that the beneficial interest is not intended to be
enjoyed by the holder of the legal title.’” First Natl. Bank of Cincinnati v. Tenney, 165 Ohio
St. 513, 515–516, 138 N.E.2d 15 (1956). There are three general situations in which
resulting trusts are imposed: (1) where an express trust fails in whole or in part, (2) where
an express trust is performed without exhausting the trust estate, and (3) purchase-
money trusts. Id.
       {¶32}   As the trial court noted, Appellant does not expressly indicate what type of
implied trust she contends was created. However, given the pleading of unjust
enrichment and the facts presented, the only possible implied trust that could have been
created would have been an implied constructive trust. “A constructive trust is


Case No. 19 CA 0935
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substantially an appropriate remedy against unjust enrichment. It is raised by equity in
respect of property which has been acquired by fraud, or where, although acquired
originally without fraud, it is against equity that it should be retained by the person holding
it. * * *.” Whitman v. Souder, 3d Dist. Seneca No. 13-84-30, 1985 WL 4387 (Dec. 12,
1985).
         {¶33}    The following is the trial court’s reasoning that there was no evidence that
an implied constructive trust based on fraud, mistake, or breach of duty:

         In this case there is no doubt that Defendant holds title to both the real
         estate in question and the IRAs [Edward Jones accounts]. The real estate
         was passed to him by virtue of the Transfer on Death Deed. The IRAs
         should be passed to him by virtue of being the sole beneficiary under the
         IRA policies.

         But does he have an equitable duty to convey it to another on the grounds
         of unjust enrichment? The answer is no. The evidence presented indicates
         that    Heinrich   created   the   transfer on     death   deed    in   October
         2010. Neither party makes any allegations that Heinrich was incompetent
         in 2010 and unable to handle his own affairs. By all accounts Heinrich
         became angry at Plaintiff in 2010 and intentionally had the deed changed
         so that she would not benefit from it. There is no evidence to suggest that
         Defendant influenced Heinrich’s decision at all. Likewise, neither party
         presented any evidence or arguments to show that Defendant obtained the
         property through fraud, duress, mistake, breach of fiduciary duty or a
         wrongful disposition.

         The same can be said for Defendant’s beneficiary status on the IRA
         accounts. There was some testimony that at one time Heinrich had one of
         Plaintiff’s children listed as a beneficiary on at least one of the IRA accounts.
         However, there was no evidence presented to show that the beneficiary
         status was changed due to fraud, duress, undue influence or mistake or




Case No. 19 CA 0935
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       through breach of fiduciary duty, or through the wrongful disposition of
       another’s property.

       The elements required to create a constructive trust for Plaintiff simply do
       not exist and there are no issues of material fact left to decide otherwise.

10/11/19 J.E.

       {¶34}    There is nothing in the record to indicate this reasoning is
incorrect. Furthermore, in addition to the above analysis, it is noted that there is nothing
in the record to create a genuine issue of material fact that it is against the principles of
equity to not create an implied constructive trust. The argument that there is a genuine
issue of material fact that an implied construction trust was created is meritless.

                                   Conclusion

       {¶35}    This court finds no merit with the assignment of error. The trial court’s
grant of summary judgment for Appellee is affirmed.




Donofrio, J., concurs.

Waite, P. J., concurs.




Case No. 19 CA 0935
[Cite as Johnson v. Kuehn, 2020-Ohio-3757.]




         For the reasons stated in the Opinion rendered herein, the assignment of error
 is overruled and it is the final judgment and order of this Court that the judgment of the
 Court of Common Pleas of Carroll County, Ohio, is affirmed. Costs to be taxed against
 the Appellant.
         A certified copy of this opinion and judgment entry shall constitute the mandate
 in this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that
 a certified copy be sent by the clerk to the trial court to carry this judgment into
 execution.



                                      NOTICE TO COUNSEL

         This document constitutes a final judgment entry.
