[Cite as Ulinski v. Byers, 2015-Ohio-282.]


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

CHRISTOPHER K. ULINSKI, TRUSTEE                       C.A. No.      27267
OF THE RADER FAMILY
IRREVOCABLE TRUST U/A/D
DECEMBER 10, 1993
                                                      APPEAL FROM JUDGMENT
         Appellant                                    ENTERED IN THE
                                                      COURT OF COMMON PLEAS
         v.                                           COUNTY OF SUMMIT, OHIO
                                                      CASE No.   2013-CV-00003
PETER BYERS, et al.

         Appellees

                                  DECISION AND JOURNAL ENTRY

Dated: January 28, 2015



         BELFANCE, Presiding Judge.

         {¶1}    Appellant, Christopher Ulinski, appeals from the order of the Summit County

Court of Common Pleas, Probate Division, removing him as trustee of the Rader Family

Irrevocable Trust (“the Rader Trust”). This Court affirms.

                                                 I.

         {¶2}    On December 10, 1993, Lewis and Gwendolyn Rader (“the Raders”) executed the

Rader Trust and named its drafter, Mr. Ulinski, as trustee. The Raders created the trust for the

purpose of holding various assets for the benefit of their family and, in particular, their

grandchildren. The trust provided that, upon its creation, Mr. Ulinski would divide its funds into

separate, equal shares for each of the Raders’ grandchildren, with the exception of two.1 It




1
    The Rader Trust excluded Jody Bishop and Heather Bishop as beneficiaries of the trust.
                                                2


further provided that, after the Raders died, Mr. Ulinski would be responsible for distributing

those shares to the grandchildren. Gwendolyn Rader died on September 20, 2011, and her

husband, Lewis Rader, died on October 5, 2011. There is no dispute that, after their deaths, the

Rader Trust received approximately $250,000 from their life insurance policy.

       {¶3}    The Rader Trust specifically named five of the Raders’ grandchildren as primary

beneficiaries of the trust. Those five grandchildren were: Peter Byers, Berkley Byers, Rebecca

Minerva Byers, Taylia Waller aka Bishop, and Terra Adams aka Bishop (collectively, “the

Primary Beneficiaries”).    It was the position of Mr. Ulinski, however, that the Primary

Beneficiaries were not the only grandchildren who would receive a share of the trust. Mr.

Ulinski read the trust to entitle all of the Raders’ surviving grandchildren to a share, with the

exception of the two who had been specifically excluded. Consequently, when the Raders died,

Mr. Ulinski did not give the Primary Beneficiaries their shares. Instead, he hired a search firm to

identify all of the Raders’ surviving grandchildren, with the exception of the two excluded by the

trust. The search was completed in January 2012 and uncovered 26 grandchildren, including the

Primary Beneficiaries. Mr. Ulinski then notified the Primary Beneficiaries and the other 21

grandchildren identified by the search (“the Potential Beneficiaries”) of their status as

beneficiaries of the Rader Trust.

       {¶4}    On January 10, 2013, two of the Primary Beneficiaries filed a complaint for

declaratory judgment in the probate court. The complaint named Mr. Ulinski as a defendant, as

well as the remaining Primary Beneficiaries and seven of the Potential Beneficiaries. The

complaint alleged that Mr. Ulinski had incorrectly identified the Potential Beneficiaries named

therein “and other unknown persons” as beneficiaries of the trust when, in fact, they were not.
                                                 3


Consequently, the complaint sought a declaration that the Primary Beneficiaries were “the only

persons entitled to receive the Trust assets upon distribution.”

        {¶5}    Mr. Ulinski answered the complaint. Additionally, he filed a cross-claim against

the Potential Beneficiaries named in the complaint and a third-party complaint against the

Potential Beneficiaries who had not yet been named. Mr. Ulinski alleged that, through a search

firm, he had identified all of the Raders’ surviving grandchildren. He further alleged that the

Rader Trust contained conflicting language, such that it was unclear to him whether he was to

distribute its assets strictly to the Primary Beneficiaries or to all 26 surviving grandchildren. He

asked the court to declare the beneficiaries of the trust and the manner in which he should

distribute its assets.

        {¶6}    On August 30, 2013, Mr. Byers, one of the Primary Beneficiaries, filed a motion

to remove Mr. Ulinski as trustee of the Rader Trust. Mr. Byers alleged that, since becoming

trustee in 1993, Mr. Ulinski had been convicted of fraud and disbarred. He also alleged that Mr.

Ulinski had demonstrated both incompetence and negligence in his role as a trustee. According

to Mr. Byers, since redeeming the Raders’ $250,000 insurance policy, Mr. Ulinski had

“disbursed to himself and others at least $25,000.00 * * * to collect Trustee fees for services

never rendered, to pay for his belated search for the Rader’s (sic) heirs, and to pay lawyers hired

to defend his incompetence, neglect, and inaction.” Mr. Byers asked the court to immediately

remove Mr. Ulinski as trustee. Several of the Potential Beneficiaries joined in his motion while

another faction of the Potential Beneficiaries filed a brief in opposition. Mr. Ulinski also filed a

brief in opposition, and Mr. Byers filed a reply. Additionally, Mr. Ulinski filed a supplemental

response with the court’s permission.
                                                  4


       {¶7}    At the same time that the parties were either pursuing or opposing the motion to

remove, the Primary Beneficiaries and the Potential Beneficiaries participated in a court-ordered

mediation.    The two groups reached a settlement, which entitled each of the Potential

Beneficiaries who had participated in the litigation to receive a $5,000 distribution.2         On

December 18, 2013, several of the Potential Beneficiaries filed a motion to enforce their

settlement. In their motion, they alleged that it was their

       understanding that because of a pending motion to remove the trustee, trustee’s
       counsel [was] reluctant to make [the agreed upon] distributions unless the same
       [were] approved by [the] Court and the trustee [was] held to be without liability to
       make the [] distributions as set forth in the settlement agreement.

They asked the court to issue an order effectuating the terms of the settlement. Additionally, Mr.

Byers filed a motion in which he asked the court to hold in abeyance any ruling on his motion to

remove Mr. Ulinski as trustee, pending enforcement of the settlement. The court agreed to hold

the motion to remove in abeyance until further notice and issued an order to that effect.

       {¶8}    Within days of the trial court’s order, Mr. Ulinski filed a brief in which he

opposed the settlement agreement. On January 6, 2014, over Mr. Ulinski’s objection, the court

ordered the settlement. Specifically, it ordered Mr. Ulinski to pay $5,000 to each of the Potential

Beneficiaries named within its order.

       {¶9}    On February 6, 2014, Mr. Ulinski filed a motion for summary judgment. He

acknowledged that the deadline the court had set for the filing of dispositive motions had

expired, but asked the court to accept his late filing on the basis that the settlement left no

genuine issues of material fact for trial.     He noted that he was in the process of making

distributions to the Potential Beneficiaries in accordance with the settlement order, that the Rader


2
  The court entered a default judgment against two of the Potential Beneficiaries who were
served with the complaint, but never responded.
                                                  5


Trust currently had a balance of $181,299.16, and that “[t]rustee fees in the amount of $2,487.50

and reasonable billed attorney fees incurred by the Trustee in the amount of $8,702.00 [had] not

yet been charged to the Trust * * *.” He asked the court to declare all the parties receiving trust

funds to be beneficiaries and to order him to distribute the remaining balance of the trust to the

three remaining Primary Beneficiaries,3 less his trustee fees and reasonable attorney fees.

       {¶10} On February 14, 2014, the three remaining Primary Beneficiaries filed both an

objection to Mr. Ulinski’s summary judgment motion and a renewed motion to remove him as

trustee. They cast Mr. Ulinski’s motion as “untimely, defective, unnecessary, and self-serving,”

noting that it failed to benefit the Rader Trust in any manner and only served to drain more of its

assets. In their renewed motion to remove, they argued that Mr. Ulinski had already collected a

significant portion of the trust for himself and his attorneys such that less than 75% of the funds

in the Rader Trust were left for the beneficiaries. They asked the court, not only to remove Mr.

Ulinski as trustee, but also to order him to return the trust funds and to award them punitive

damages and attorney fees. Mr. Ulinski was not served with a copy of either the objection to his

summary judgment motion or the renewed motion to remove him as a trustee.

       {¶11} On February 25, 2014, the trial court denied Mr. Ulinski’s summary judgment

motion as untimely and granted the motion to remove him as trustee. Yet, the court did not order

Mr. Ulinski to refund the trust. Instead, the court noted that it would address that issue by

separate order, if the successor trustee opted to pursue it.




3
  During the litigation, two of the Primary Beneficiaries assigned their rights to the remainder of
their group. As such, only three of the Primary Beneficiaries remained.
                                               6


       {¶12} Mr. Ulinski now appeals from the trial court’s decision to remove him as trustee

of the Rader Trust and raises four assignments of error for our review. For ease of analysis, we

combine the assignments of error.

                                              II.

                                 ASSIGNMENT OF ERROR I

       THE TRIAL COURT ERRED IN GRANTING A MOTION TO REMOVE
       TRUSTEE THAT WAS NOT SERVED UPON DEFENDANT-APPELLANT,
       CHRISTOPHER K. ULINSKI, TRUSTEE OF THE RADER FAMILY
       IRREVOCABLE TRUST U/A/D DECEMBER 10, 1993 (“TRUSTEE”).

                                ASSIGNMENT OF ERROR II

       THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN RULING
       ON AND GRANTING A MOTION TO REMOVE TRUSTEE PRIOR TO THE
       EXPIRATION OF THE FOURTEEN (14) DAY WAIT-PERIOD FOR RULING
       ON A MOTION PROVIDED IN SUMMIT COUNTY COURT OF COMMON
       PLEAS, PROBATE DIVISION LOCAL RULE 57.1(C).

                                ASSIGNMENT OF ERROR III

       THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN
       GRANTING A MOTION TO REMOVE TRUSTEE WITHOUT HOLDING AN
       ORAL HEARING AFTER AN ORAL HEARING WAS REQUESTED BY THE
       TRUSTEE.

                                ASSIGNMENT OF ERROR IV

       THE TRIAL COURT ERRED IN FINDING THAT THE TRUSTEE
       EXPENDED $25,000 FROM ASSETS OF THE RADER FAMILY
       IRREVOCABLE TRUST U/A/D DECEMBER 10, 1993 (THE “TRUST”) TO
       CONDUCT A NATIONAL SEARCH FOR THE GRANDCHILDREN
       BENEFICIARIES OF THE TRUST.”

       {¶13} In his assignments of error, Mr. Ulinski argues that the probate court erred by

removing him as trustee of the Rader Trust. Specifically, he argues that the court erred by

removing him: (1) pursuant to a motion with which he had not been served; (2) prior to the

expiration of the 14-day response period triggered by local rule; (3) without holding a hearing;
                                                7


and (4) based, in part, on an erroneous factual finding. For the reasons set forth below, we reject

Mr. Ulinski’s assignments of error and affirm the judgment of the trial court.

       {¶14} R.C. 2101.24 outlines the jurisdiction of the probate court and provides that “[t]he

probate court has concurrent jurisdiction with, and the same powers at law and in equity as, the

general division of the court of common pleas to issue writs and orders, and to hear and

determine * * * [a]ny action that involves an inter vivos trust * * *.” R.C. 2101.24(B)(1)(b).

Accord R.C. 5802.03. R.C. Chapters 5801 to 5811 “apply to charitable and noncharitable inter

vivos express trusts * * *.” R.C. 5801.02. Under R.C. 5807.06:

       (A) The settlor, a cotrustee, or a beneficiary may request the court to remove a
       trustee, or the court may remove a trustee on its own initiative.

       (B) The court may remove a trustee for any of the following reasons:

       (1) The trustee has committed a serious breach of trust;

       (2) Lack of cooperation among cotrustees substantially impairs the administration
       of the trust;

       (3) Because of unfitness, unwillingness, or persistent failure of the trustee to
       administer the trust effectively, the court determines that removal of the trustee
       best serves the interests of the beneficiaries.

“The decision whether to remove a trustee lies within the sound discretion of the probate court,

and an appellate court will not reverse that decision absent a showing of a clear abuse of that

discretion.” In re Trust Estate of CNZ Trust, 9th Dist. Lorain No. 06CA008940, 2007-Ohio-

2265, ¶ 16.

       {¶15} There is no dispute that Mr. Ulinski was not served with the motion that the three

remaining Primary Beneficiaries filed on February 14, 2014, renewing the request to remove him

as trustee. There is also no dispute that the court removed Mr. Ulinski as trustee on February 25,

2014, 11 days after the filing of the renewed motion. In his first and second assignments of

error, Mr. Ulinski challenges the court’s removal decision on procedural grounds. He argues
                                                8


that, because proper service is mandatory under the Ohio Civil Rules of Procedure, the court

could not consider the renewed motion to remove him as trustee. See Pla v. Wivell, 9th Dist.

Summit No. 25814, 2011-Ohio-5637, ¶ 12-15. He further argues that, because the local rules of

the probate court afford a party a 14-day window in which to respond to written motions, the

court could not rule on the renewed motion to remove him as trustee before that window expired.

See Loc.R. 57.1(C) of the Summit County Court of Common Pleas, Probate Division.

       {¶16} Mr. Ulinski is correct in his assertion that “[p]roper service under the civil rules is

mandatory.” (Internal quotations and citations omitted.) Pla at ¶ 14. Due to the mandatory

nature of the rules, a trial court may not consider a motion that has not been served on a party in

conformance with Civ.R. 5(A). See id. at ¶ 15. In this particular case, however, the fact that Mr.

Ulinski was not served with the renewed motion to remove him as trustee does not end the

analysis. That is because a probate court also “may remove a trustee on its own initiative.” R.C.

5807.06(A).

       Although removal proceedings are commonly instituted by the filing of a motion,
       upon a proper showing the Court may act sua sponte. This Court has previously
       opined that a probate court is fully justified in removing a fiduciary if the
       fiduciary’s conduct has come to the knowledge of the probate court in any
       manner, so long as the fiduciary has had the opportunity to defend his conduct. In
       fact, this Court further opined that, where the probate court learns of a fiduciary’s
       misconduct by any means, the court may sua sponte remove the fiduciary, and it
       would have been the court’s duty to do so. Accordingly, the probate court
       possesses an inherent power and affirmative duty to remove a fiduciary, even in
       the absence of any motion, where evidence of the fiduciary’s actions which are
       contrary to the interest of the trust are demonstrated by any means.

(Internal quotations, citations, and alteration omitted.) In re Estate of Howard, 9th Dist. Lorain

No. 05CA008730, 2006-Ohio-2176, ¶ 16. As long as Mr. Ulinski had the opportunity to defend

his conduct, the court had the authority to remove him as trustee, notwithstanding any procedural

defects surrounding the renewed motion to remove. See id. See also Tomazic v. Rapoport, 8th
                                                 9


Dist. Cuyahoga No. 97937, 2012-Ohio-4402, ¶ 18 (“[E]ven assuming * * * [the movant] had no

standing to seek [the trustee’s] removal * * *, the court on its own initiative had jurisdiction to

hear evidence relating to [the trustee’s] administration of the Trust.”). Mr. Ulinski’s first and

second assignments of error, therefore, lack merit.

       {¶17} With regard to having had the opportunity to defend his conduct, Mr. Ulinski

argues that the court erred by removing him as trustee without first holding a hearing. He relies

upon R.C. 2109.24 and several cases interpreting that statute. R.C. 2109.24, however, only

applies to the removal of a trustee from a testamentary trust. Alan Newman, The Uniform Trust

Code: An Analysis of Ohio’s Version, 34 Ohio N.U.L.Rev. 135, 179 (2008), fn. 290. When

considering the removal of a trustee from an inter vivos trust, R.C. 5807.06 applies. Id. See also

R.C. 5801.02 (R.C. Chapters 5801 to 5811 “apply to charitable and noncharitable inter vivos

express trusts”). Mr. Ulinski is, therefore, incorrect in his reliance upon R.C. 2109.24.4

       {¶18} On its face, R.C. 5807.06 does not require a court to hold a hearing before

removing a trustee. Even so, “due process may require a hearing prior to the removal of a

fiduciary.” In re Estate of Howard at ¶ 13.

       In regard to the procedural mechanisms of hearings, this Court has stated * * *
       [that] “[i]t is acceptable practice for trial courts to dispose of motions without
       formal hearing, so long as due process rights are afforded. There is no
       requirement that a hearing be conducted in a specific manner. It may indeed, be
       formal, with examination of witnesses and oral arguments. The requirement of a
       ‘hearing’ may be satisfied when the judge requests submission of affidavits and/or
       briefs by a certain date. Or, [], it may be had simply of the papers filed. The type
       of hearing to be had is discretionary with the judge.”




4
 We would note that, in the court below, Mr. Ulinski expressly argued that R.C. 2109.24 does
not apply to inter vivos trusts. The position he takes on appeal is, therefore, contrary to the
position he took in the court below.
                                                 10


(Internal citation omitted.) Id., quoting Wilson v. Alside, Inc., 9th Dist. Summit No. 11667, 1985

WL 10679, *1 (Apr. 10, 1985).

       {¶19} At the time the court removed Mr. Ulinski as trustee, it had before it: (1) Mr.

Byers’ original motion to remove Mr. Ulinski; (2) a brief in opposition to the motion, filed by a

faction of the Potential Beneficiaries; (3) a brief in support of the motion, filed by another faction

of the Potential Beneficiaries; (4) a brief in opposition to the motion, filed by Mr. Ulinski; (5) a

reply brief filed by Mr. Byers; and (6) a supplemental brief filed by Mr. Ulinski. Additionally,

the court had before it Mr. Ulinski’s deposition and his motion for summary judgment. In all of

his filings and his deposition, Mr. Ulinski outlined the measures he had taken in his role as

trustee and defended his actions. Mr. Ulinski, therefore, had the opportunity to present in detail

his position on the issue of his fitness to serve as trustee. Even so, he argues that he was

prejudiced by the court’s failure to hold a hearing for two reasons.

       {¶20} First, Mr. Ulinski argues that he was prejudiced by the court’s failure to hold a

hearing because “many of the [P]otential [B]eneficiaries * * * took differing positions on

whether or not [he] should be removed” and those positions could have been supported with

evidence at a hearing. As previously noted, a faction of the Potential Beneficiaries initially filed

a brief in opposition to Mr. Ulinski’s removal. By the time of the renewed motion to remove Mr.

Ulinski, however, all of the Potential Beneficiaries and the Primary Beneficiaries had reached a

settlement. Additionally, the same group of Potential Beneficiaries who had initially opposed

Mr. Ulinski’s removal filed a motion to enforce that settlement, asking the court to order Mr.

Ulinski to pay them their money. Although Mr. Ulinski argues that the Potential Beneficiaries

“had their own sources of evidence and arguments concerning [his] potential removal * * *

which should have been heard at a hearing,” the Potential Beneficiaries never requested a
                                                11


hearing and the argument that they might have involved themselves in a removal hearing after

the court had already approved their settlement is mere speculation. More importantly, the

Potential Beneficiaries have not appealed from the court’s removal order, and Mr. Ulinski cannot

assert an argument on their behalf.

         {¶21} Mr. Ulinski’s second argument as to why the court’s failure to hold a hearing

prejudiced him is that, in the absence of a hearing, the court made erroneous factual findings in

its removal order. Mr. Ulinski only identifies one factual finding that the court made in error.

That allegedly erroneous factual finding is also the subject of Mr. Ulinski’s fourth assignment of

error.

         {¶22} In its removal order, the court wrote that Mr. Ulinski expended $25,000 of the

trust’s assets hiring a national search firm to identify all of the Raders’ surviving grandchildren.

Mr. Ulinski argues that the $25,000 figure is not supported by the record. He concedes that he

hired a national search firm and that he expended trust assets to pay for the search, but argues

that the amount he expended on the actual search was far less than $25,000. Even if he is

correct, however, Mr. Ulinski must demonstrate that the court’s error affected his substantial

rights. See Civ.R. 61.

         {¶23} In his reply brief in support of his original motion to remove Mr. Ulinski as

trustee, Mr. Byers wrote that a copy of Mr. Ulinski’s trust expenditures showed “total trust

expenditures by Mr. Ulinski as of April 30, 2013, of over $30,000.00, or more than ten percent

of the trust corpus, to collect trustee fees, to conduct a nationwide search for the Raders’ heirs,

and to pay his lawyers to defend his actions.” One of the exhibits Mr. Byers attached to his reply

was a photocopy of the check register for the trust account. The check register showed a

payment of $2,342.63 to the national search firm that Mr. Ulinski hired. It also showed that,
                                               12


from December 2011 to April 2013, Mr. Ulinski withdrew $16,721.60 to pay his attorneys and

withdrew another $11,932.91 for a cost advance on the heir search, litigation expenses, and

trustee fees. Accordingly, from December 2011 to April 2013, Mr. Ulinski withdrew $30,997.14

from the trust. During that same time period, he did not distribute any money to any of the

Raders’ grandchildren.

       {¶24} Mr. Ulinski contacted the Primary Beneficiaries and the Potential Beneficiaries by

letter in March 2012. In the letter he addressed to Mr. Byers, Mr. Ulinski wrote that, after

having engaged the services of a national search firm, he was “now confident that [he] kn[e]w

who the beneficiaries of the trust [were].” Nevertheless, Mr. Ulinski wrote that there was a

matter that needed to be resolved before he could make any distributions. Specifically, he

indicated that the Raders had also executed a revocable trust and that, consistent with his duties

as trustee, he might have to use the funds in the Rader Trust to loan money to or purchase assets

from their revocable trust. He also wrote, however, that the trust document for the revocable

trust could not be found, so there was “presently * * * no agreement as to the identity of the

beneficiaries under that document.”

       {¶25} At his May 2013 deposition, Mr. Ulinski admitted that he had drafted the Rader

Trust. He testified that, while it would have been his custom to review other estate planning

documents that were in place at the time he was drafting an instrument, he could not specifically

recall if he had reviewed the revocable trust that the Raders had executed the year before he

drafted the Rader Trust for them. He stated that it would not have been his custom to retain a

copy of their revocable trust in his file because he did not create that trust document.

Nevertheless, he maintained that he could not distribute the funds in the Rader Trust because
                                                  13


there was an implied relationship between it and the revocable trust. At the time of Mr. Ulinski’s

deposition, the revocable trust document still had not been found.

       {¶26} With regard to drafting the Rader Trust, Mr. Ulinski testified that the Raders

provided him with the names of five of their grandchildren, who would be listed as the Primary

Beneficiaries, and two of their grandchildren, who would be excluded from the trust. Mr.

Ulinski did not know why the Raders elected their grandchildren as beneficiaries rather than their

children. He did not know why the Raders excluded two of their grandchildren as beneficiaries.

He did not know if the Raders had more than seven grandchildren at the time that he drafted the

document. Further, he did not know why it would have been necessary to identify the Raders’

five grandchildren as “primary beneficiaries” if they were the only beneficiaries listed within the

document. Mr. Ulinski testified that, during the almost 20-year period he had administered the

trust, he understood its beneficiaries to be the grandchildren of the Raders, but he did not know

who those individuals were.

       {¶27} In addition to using the funds in the Rader Trust to pay for a national search and

for his attorney fees, Mr. Ulinski testified that he had paid himself his trustee fees out of the trust

at a rate of $200 per hour. In the motion for summary judgment that he filed on February 6,

2014, Mr. Ulinski wrote that he was making the $5,000 distributions to the Potential

Beneficiaries and that, of the original $251,109.70 deposited into the trust account, $188,299.16

remained.5 He also wrote, however, that he had incurred an additional $11,189.50 in attorney

fees and trustee fees that he had yet to charge to the account.




5
 Mr. Ulinski did not indicate how many of the Potential Beneficiaries, if any, had been paid as
of the date of his filing.
                                                  14


       {¶28} In ordering Mr. Ulinski’s removal, the trial court heavily emphasized the fact that

Mr. Ulinski had drafted the Rader Trust. The court wrote that it

       struggle[d] to understand how a lawyer, even if he no longer practices law, or a
       trustee acting within a standard of reasonable care could be unable to interpret his
       own document. If he followed his clients’ instructions in the first instance, which
       the Court assumes he did, he would have accurate knowledge of the intent of the
       trust settlors and could comprehend no ambiguity. Instead, he spent $25,000 of
       trust assets to figure out who the beneficiaries [were] of the trust he drafted and
       oversaw and triggered a lawsuit to clarify his own document.

The court noted the large amount of money that Mr. Ulinski had already withdrawn from the

trust and the additional money that he planned on withdrawing. The court cast Mr. Ulinski’s

actions, including his initial refusal to comply with the settlement and his late summary

judgment filing, as actions that delayed the closing of the trust. The court noted that the

litigation “ha[d] the potential to consume all of the trust assets so that by the time the trust corpus

is distributed, there may be no proceeds left.” It ultimately found that it was proper to remove

Mr. Ulinski due to his “unfitness, unwillingness, or persistent failure * * * to administer the trust

effectively.” R.C. 5807.06(B)(3).

       {¶29} Mr. Ulinski is correct that the record does not support the court’s solitary finding

that he expended $25,000 of the trust’s assets strictly on the national search that he authorized.

Nevertheless, Mr. Ulinski has not shown that the court’s erroneous factual finding prejudiced his

substantial rights. See Civ.R. 61. See also Kent v. Kent, 9th Dist. Summit No. 26072, 2012-

Ohio-2745, ¶ 11-13 (erroneous factual finding amounted to harmless error). Mr. Ulinski does

not take issue with any of the additional evidence contained in the record below upon which the

trial court based its decision to remove Mr. Ulinski as trustee pursuant to R.C. 5807.06(B)(3),6


6
  R.C. 5807.06(B)(3) permits removal of a trustee “[b]ecause of unfitness, unwillingness, or
persistent failure of the trustee to administer the trust effectively, the court determines that
removal of the trustee best serves the interests of the beneficiaries.”
                                                15


nor does he argue that based upon that evidence, the trial court’s decision was unreasonable,

arbitrary or unconscionable. Instead, he argues that the court erred in its one factual finding and

that, had he been afforded a hearing, the court would have been disabused of the notion that he

spent $25,000 on a national search for the beneficiaries of the Rader Trust. Because the court’s

finding did not affect Mr. Ulinski’s substantial rights, however, his arguments lack merit.

Therefore, Mr. Ulinski’s third and fourth assignments of error are overruled.

                                                III.

       {¶30} Mr. Ulinski’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.

       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.
                                      16


      Costs taxed to Appellant.




                                           EVE V. BELFANCE
                                           FOR THE COURT



MOORE, J.
CONCURS.

HENSAL, J.
CONCURS IN JUDGMENT ONLY.


APPEARANCES:

DAVID W. WOODBURN, PATRICK J. WESCHLER, and MATTHEW R. DUNCAN,
Attorneys at Law, for Appellant.

TIMOTHY H. CHAMPION and DAVID C. CHAMPION, Attorneys at Law, for Appellee.
