[Cite as Jacob v. Jacob, 2017-Ohio-8725.]


STATE OF OHIO                    )                       IN THE COURT OF APPEALS
                                 )ss:                    NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                 )

LISA JACOB                                               C.A. No.   28293

        Appellant

        v.                                               APPEAL FROM JUDGMENT
                                                         ENTERED IN THE
DAVID JACOB, TRUSTEE, Juanieta L.                        COURT OF COMMON PLEAS
Jacob Rev. Liv. Trust                                    COUNTY OF SUMMIT, OHIO
                                                         CASE No.   2015-CV-119
        Appellee

                                 DECISION AND JOURNAL ENTRY

Dated: November 29, 2017



        HENSAL, Presiding Judge.

        {¶1}    Lisa Jacob appeals a judgment of the Summit County Court of Common Pleas,

Probate Division, that granted summary judgment to David Jacob, Trustee of the Juanieta L.

Jacob Revocable Living Trust. For the following reasons, this Court affirms.

                                                    I.

        {¶2}    Juanieta Jacob created a revocable living trust that named her daughter Lisa as the

successor trustee. A few years later she amended the trust to name her son David as the

successor trustee instead. The following year, she amended the trust again, specifically directing

the trustee to deduct $216,927.76 from any share that Lisa was entitled to receive after her death

and to redistribute it to the other beneficiaries of the trust.

        {¶3}    Following Juanieta’s death, David began administering the trust. Lisa filed a

complaint against him, alleging breach of fiduciary duty. She also requested a declaratory

judgment and an accounting of all of the income, expenses, assets, and liabilities of the trust.
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She further contested the validity of the provisions reducing her share. Following discovery,

David moved for summary judgment, which the probate court granted. Lisa appealed, and also

filed a “motion for reconsideration or, in the alternative, relief from judgment or order and

motion for order nunc pro tunc.” This Court remanded the action to the probate court so that it

could rule on Lisa’s Civil Rule 60(B) motion. The court denied her motion. Lisa subsequently

amended her notice of appeal to include the order that the probate court entered on remand. She

has assigned two errors.

                                                II.

                                  ASSIGNMENT OF ERROR I

       THE PROBATE COURT COMMITTED LEGAL ERROR IN GRANTING
       APPELLEE’S MOTION FOR SUMMARY JUDGMENT, PURSUANT TO
       RULE 56(C) OF THE OHIO RULES OF CIVIL PROCEDURE, IN THAT
       THERE EXISTS AN ABUNDANCE OF GENUINE ISSUES OF FACT,
       REGARDING APPELLANT’S RIGHT TO AN ACCOUNTING.

       {¶4}    Lisa argues that the probate court incorrectly granted summary judgment on her

request for an accounting. Under Civil Rule 56(C), summary judgment is appropriate if:

       (1) [n]o genuine issue as to any material fact remains to be litigated; (2) the
       moving party is entitled to judgment as a matter of law; and (3) it appears from
       the evidence that reasonable minds can come to but one conclusion, and viewing
       such evidence most strongly in favor of the party against whom the motion for
       summary judgment is made, that conclusion is adverse to that party.

Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327 (1977). To succeed on a motion for

summary judgment, the movant bears the initial burden of demonstrating that there are no

genuine issues of material fact concerning an essential element of the opponent’s case. Dresher

v. Burt, 75 Ohio St.3d 280, 292 (1996). If the movant satisfies this burden, the nonmoving party

“must set forth specific facts showing that there is a genuine issue for trial.” Id. at 293, quoting
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Civ.R. 56(E). This Court reviews an award of summary judgment de novo. Grafton v. Ohio

Edison Co., 77 Ohio St.3d 102, 105 (1996).

       {¶5}    According to Lisa, David had an obligation under Revised Code Section 5808.13

to provide her with a report of the trust’s “property, liabilities, receipts, and disbursements”

every year, which he failed to do. R.C. 5808.13(C). In his motion for summary judgment, David

argued that he satisfied his reporting obligation, pointing to a number of letters that he had sent

to the trust’s beneficiaries, including Lisa, about the status of the trust. Lisa argues that the

letters were insufficient under Section 5808.13(C) because they did not indicate the trust’s

receipts, liabilities, and other expenses, including any compensation that the trust paid to David.

       {¶6}    This Court has determined that a report that does not include a list of the trust’s

liabilities satisfies the reporting requirements under Section 5808.13(C) if there was nothing to

disclose. Gorby v. Aberth, 9th Dist. Summit No. 28021, 2017-Ohio-274, ¶ 21. The official

comment to Section 5808.13(C) also indicates that there is no “inference that the [trustee’s]

report must be prepared in any particular format or with a high degree of formality.” “The key

factor is not the format chosen but whether the report provides the beneficiaries with the

information necessary to protect their interests.” Id. Upon review of the documents submitted

by David, we conclude that he satisfied his initial burden under Dresher to demonstrate that he

complied with Section 5808.13(C).

       {¶7}    In her opposition brief, Lisa did not challenge David’s assertion that he provided

the beneficiaries with an accounting sufficient to satisfy his statutory obligation. Instead, she

focused on whether David breached his fiduciary duties by convincing Juanieta to amend the

trust a second time and whether the amendment was invalid because of a deficit in Juanieta’s

testamentary capacity. She also argued that David engaged in self-dealing by writing checks to
                                                 4


himself and his wife from Juanieta’s account.        The only reference that Lisa made to her

accounting claim was an assertion that, since David breached his fiduciary duties, “[i]t follows

that a proper accounting is in order.”

       {¶8}    Upon review of the record, we conclude that Lisa did not set forth specific facts in

her opposition to David’s motion for summary judgment that demonstrated there is a genuine

issue regarding whether the trust reports David prepared failed to include all of the trust’s

“property, liabilities, receipts, and disbursements[.]” R.C. 5808.13(C). The probate court,

therefore, correctly granted summary judgment to David on Lisa’s accounting claim. Lisa’s first

assignment of error is overruled.

                                    ASSIGNMENT OF ERROR II

       THE PROBATE COURT ABUSED ITS DISCRETION IN DENYING
       APPELLANT’S MOTION FOR RELIEF FROM JUDGMENT OR ORDER,
       PURSUANT TO RULE 60(B) OF THE OHIO RULES OF CIVIL
       PROCEDURE, ON THE GROUNDS THAT (1) APPELLANT IS ENTITLED
       TO AN ACCOUNTING, AND (2) THE REDUCTION OF APPELLANT’S
       SHARE UNDER THE TRUST IS BASED ON A CLAIM OF SETOFF
       BARRED BY THE STATUTE OF LIMITATIONS.

       {¶9}    Lisa next argues that the trial court incorrectly denied her post-judgment motion

under Civil Rule 60(B)(5). That rule provides that “[o]n motion and upon such terms as are just,

the court may relieve a party or his legal representative from a final judgment, order or

proceeding for * * * any * * * reason justifying relief from the judgment.” Civ.R. 60(B)(5).

       To prevail on a motion brought under Civ.R. 60(B), the movant must demonstrate
       that: (1) the party has a meritorious defense or claim to present if relief is
       granted; (2) the party is entitled to relief under one of the grounds stated in Civ.R.
       60(B)(1) through (5); and (3) the motion is made within a reasonable time * * *.

GTE Automatic Elec., Inc. v. ARC Industries, Inc., 47 Ohio St.2d 146 (1976), paragraph two of

the syllabus. “These requirements are independent and in the conjunctive; thus the test is not

fulfilled if any one of the requirements is not met.” Strack v. Pelton, 70 Ohio St.3d 172, 174
                                                 5


(1994). “A motion for relief from judgment under Civ.R. 60(B) is addressed to the sound

discretion of the trial court, and that court’s ruling will not be disturbed on appeal absent a

showing of abuse of discretion.” Griffey v. Rajan, 33 Ohio St.3d 75, 77 (1987). An abuse of

discretion implies that the trial court was unreasonable, arbitrary, or unconscionable in its ruling.

Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).

       {¶10} Regarding her accounting claim, Lisa argues that the probate court abused its

discretion because it did not review the evidence she submitted in support of her claim, merely

writing in its order that “[a]s for the accountings, there is nothing new for the Court to consider.”

Specifically, she argues that she requested an updated accounting from David on July 21, 2016.

According to Lisa, although David assured her that an updated accounting would be forthcoming

within 10 days, she never received one.

       {¶11} Lisa filed her complaint against David in August 2015. The probate court granted

summary judgment to David in June 2016. Lisa’s alleged request to David for an updated

accounting did not occur until July 2016, which was after her action had been decided. We,

therefore, conclude that Lisa has failed to demonstrate that she had a meritorious claim to present

if the probate court granted her relief under Civil Rule 60(B) on her accounting claim.

       {¶12} Lisa also argues that the probate court failed to rule on her statute of limitations

argument. In her motion, Lisa noted that Juanieta had given her $550,000 in 2006 to help her

resolve her divorce. She alleged that, although she had given some of the money back, the

remainder was a gift, not a loan as David had characterized it. She argued that, even if it the

payment was a loan, the statute of limitations for seeking repayment of the loan had passed. Lisa

argues that the probate court failed to address her argument in its decision.
                                                 6


       {¶13} In its entry granting summary judgment to David, the probate court noted that

there was disagreement about how much money Lisa had returned to Juanieta.              It only

considered that evidence, however, in examining whether Juanieta lacked testamentary capacity

to amend the trust a second time. The issue of whether Juanieta’s estate could bring a timely

action to recover the remainder of the money Juanieta transferred to Lisa during Lisa’s divorce

proceeding is irrelevant to this action. The question before the court was not why Juanieta

decided to reduce Lisa’s share of the trust, it was only whether she had the capacity to do so.

Lisa has not challenged the probate court’s conclusion that Juanieta did not develop dementia or

other cognitive problems until after she amended her trust a second time.

       {¶14} Upon review of the record, we conclude that the probate court exercised proper

discretion when it denied Lisa’s motion under Civil Rule 60(B)(5). Lisa’s second assignment of

error is overruled.

                                                III.

       {¶15} Lisa Jacob’s assignments of error are overruled. The judgment of the Summit

County Court of Common Pleas, Probate Division, is affirmed.

                                                                             Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.
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       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                    JENNIFER HENSAL
                                                    FOR THE COURT




CALLAHAN, J.
CONCURS.

CARR, J.
CONCURS IN JUDGMENT ONLY.


APPEARANCES:

ROBERT C. MEEKER, Attorney at Law, for Appellant.

J. REID YODER and BENJAMIN R. SORBER, Attorneys at Law, for Appellee.
