[Cite as Collins v. Hearty Invest. Trust, 2015-Ohio-400.]


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

JOHN C. COLLINS, Executor of the                            C.A. No.   27173
ESTATE OF HUGH HEARTY, Deceased,
et al.

         Appellees                                          APPEAL FROM JUDGMENT
                                                            ENTERED IN THE
         v.                                                 COURT OF COMMON PLEAS
                                                            COUNTY OF SUMMIT, OHIO
HEARTY INVESTMENT TRUST, et al.                             CASE No.   CV 2010 05 3319

         Appellants

                                  DECISION AND JOURNAL ENTRY

Dated: February 4, 2015



         CARR, Judge.

         {¶1}    Appellants, the trustee and sibling beneficiaries of the Hearty Investment Trust,

appeal from a judgment of the Summit County Court of Common Pleas in favor of Appellees,

Lisa Siegenthaler Hearty and John Collins, executor of the estate of Lisa’s late husband, Hugh

Hearty (the “Estate”). The judgment declared that Hugh had effectively transferred his share in

the Hearty Investment Trust to Lisa through a codicil to his will and that the Estate was entitled

to payment of certain debts from Hugh’s share of the Trust. The judgment also provided that the

sibling beneficiaries could satisfy the monetary obligations of the Trust to Lisa and the Estate by

paying the entire value of Hugh’s share in the Trust. This Court reverses and remands to the trial

court.
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                                                  I.

        {¶2}    This controversy involves two provisions of the Hearty Investment Trust (“the

Trust”), which Hugh and his four siblings executed in 1996 and amended in 2007. Because two

trusts and several of the relevant people in this case share the Hearty surname, this Court will

refer to Hugh and Lisa by their first names and will use descriptive terms for the two trusts and

other parties in this case.

        {¶3}    After Hugh died in 2008, a disagreement arose about whether he had effectively

transferred his share of the Trust to Lisa through a power of appointment. As originally executed

in 1996, the Trust restricted the power of appointment with pages of specific language about how

the power could be exercised and whom a sibling could appoint to receive his share. The

restrictions required that the power be exercised with specific language, focused on passing Trust

shares to lineal descendants, and limited the amount and duration of income distributions that

could pass to a sibling’s spouse.

        {¶4}    The five siblings later made amendments to the Trust that became effective on

May 1, 2007, including substantial changes to the power of appointment.             Notably, the

amendments reduced the restrictions and simplified the manner in which the power of

appointment could be exercised. Two pages of details from the original Trust were reduced to a

single paragraph. Of relevance here, the amended Trust authorized Hugh (or any of the siblings)

to appoint his spouse to receive his entire Trust share.

        {¶5}    The parties agree that the relevant language of the Trust, as amended, was in full

force and effect at the time Hugh died; that the Trust authorized Hugh to appoint Lisa to receive

his entire share of the Trust; and that if Hugh did not effectively exercise his power to appoint
                                                 3


Lisa to receive his share, his share passed to a bypass trust, from which Lisa would receive no

income or other benefit.

       {¶6}    The parties’ dispute about Hugh’s attempt to exercise the power of appointment is

whether he did so through a means that was authorized by the Trust. In relevant part, paragraph

5(A) of the amended Trust authorizes each sibling/grantor to exercise the power of appointment

in the following manner:

       [E]ach of the Grantors may appoint his or her trust share by Last Will and
       Testament made before or after the effective date of the Trust Agreement in the
       manner provided below. * * * The Grantor’s Will must make specific reference to
       this limited power of appointment. * * *. If the exercise of the limited power of
       appointment is in the form of a trust, the trustee of this instrument shall also serve
       as trustee under the trust created in accordance with the power of appointment.

Although paragraph 5(A) includes details about how much of a sibling’s share may be

transferred and who else a sibling may appoint to receive his share, none of that language is

relevant to this controversy.

       {¶7}    According to the record, Hugh attempted to exercise his power of appointment

through a 2007 codicil to his 2003 will. Although the codicil made specific reference to the

power of appointment, as required by the Trust, it was not properly executed as an enforceable

codicil to an Ohio will because it was not signed by two witnesses. See R.C. 2107.03.

       {¶8}    The parties dispute whether Hugh’s execution of an invalid codicil to his will was

an effective means of exercising his power of appointment under the terms of the Trust. The

Trustee and Hugh’s siblings (“the Siblings”) argued that the Trust required Hugh to exercise the

power of appointment through a single means: a legally valid Last Will and Testament. Because

Hugh’s 2007 codicil was not legally enforceable as an amendment to his 2003 will, they

maintained that Hugh had not effectively exercised the power of appointment through his “Last
                                                 4


Will and Testament.” Therefore, the Trustee determined that Lisa had no right to receive Hugh’s

Trust share and that his share passed to the bypass trust.

       {¶9}    Lisa and the Estate, on the other hand, suggested that the language of paragraph

5(A) was ambiguous about the means by which the power of appointment could be exercised.

Specifically, they asserted two potential points of ambiguity: (1) that it was not clear from the

language of the Trust that Hugh’s Last Will and Testament was the sole means of exercising the

power of appointment and (2) it was not clear that he was required to exercise the power of

appointment through a legally valid Last Will and Testament. Consequently, they pointed to

extrinsic evidence about the intent of the siblings in executing and amending the Trust and

Hugh’s intent in executing the 2007 codicil to his will.

       {¶10} An unrelated dispute arose between the Estate and the Trustee about another

provision of the Trust, which obligated the Trust to pay certain expenses of a deceased sibling’s

estate. Paragraph 3(E) of the Trust has remained the same since the Trust was executed in 1996

and provides for the payment of administration costs and other estate debts from a deceased

sibling’s share of the Trust “to the extent that the Trustee determines that non-Trust assets are not

available for such purpose[.]” The Estate submitted over $160,000 in debts to the Trustee in

2008 and presented documentation in December 2008 that, at that time, there were insufficient

assets in the Estate to cover the debts. The Trustee did not pay any of those debts because he

believed that there were sufficient non-trust assets “available” in Hugh’s estate to cover them.

       {¶11} On May 10, 2010, Lisa and the Estate filed this action against the Trust, the

Trustee, and the Siblings, and later added the bypass trust as a party defendant. Through

amendments to the original complaint, Lisa and the Estate sought a declaration that Hugh had
                                                5


effectively appointed Lisa to receive his entire share of the Trust and that the Trustee was

required to pay the Estate debts submitted to him in 2008.

       {¶12} The matter proceeded to a bench trial and the parties presented extensive evidence

about the intentions of the five Hearty siblings in amending the Trust and about Hugh’s attempt

to exercise the power of appointment. Based on the extrinsic evidence of the parties’ intentions,

without a finding that any term of the Trust was ambiguous, the trial court entered judgment in

favor of Lisa and the Estate.

       {¶13} The trial court declared that Hugh had effectively exercised the power of

appointment so that his Trust share passed to Lisa and that the Estate was entitled to be paid by

the Trust for the debts it submitted to the Trustee in 2008, insofar as the Estate account did not

hold sufficient assets at that time to cover those debts. The trial court’s judgment further

provided that the Siblings could satisfy the Trust’s obligations to Lisa and the Estate by paying a

lump sum judgment, equivalent to the value of Hugh’s share of the Trust, plus interest. The

Trustee and Siblings appealed, raising three assignments of error.

                                                II.

                                 ASSIGNMENT OF ERROR I

       THE TRIAL COURT ERRED IN DECLARING THAT PLAINTIFF LISA
       SIEGENTHALER WAS MADE A BENEFICIARY OF THE HEARTY
       INVESTMENT TRUST BY MEANS OF AN INVALID CODICIL – ONE
       THAT DID NOT CONFORM TO THE WITNESS AND ATTESTING
       REQUIREMENTS OF OHIO LAW.

       {¶14} The first assignment of error is that the trial court erred in concluding that Hugh

effectively exercised his power of appointment through a 2007 codicil to his 2003 will. The

parties agree that Hugh signed a prepared codicil document, which referred to the power of
                                                 6


appointment, but that he did not properly execute it as required by R.C. 2107.03 because no

witnesses signed the document.

       {¶15} The only issue raised by this assignment of error is whether the trial court

correctly concluded that the Trust authorized Hugh to exercise the power of appointment through

an invalid codicil to his will. In relevant part, paragraph 5(A) of the Trust authorized each

sibling/grantor to exercise the power of appointment in the following manner:

       [E]ach of the Grantors may appoint his or her trust share by Last Will and
       Testament made before or after the effective date of the Trust Agreement in the
       manner provided below. * * * The Grantor’s Will must make specific reference to
       this limited power of appointment. * * *. If the exercise of the limited power of
       appointment is in the form of a trust, the trustee of this instrument shall also serve
       as trustee under the trust created in accordance with the power of appointment.
       (Emphasis added.)

       {¶16} The parties dispute the meaning of paragraph 5(A) in two relevant respects: (1)

whether it authorized Hugh to exercise the power of appointment by a means other than through

his “Last Will and Testament” and (2) whether the term “Last Will and Testament” required that

Hugh exercise the power through a legally valid will. These two arguments are distinct, as they

are based on different language in paragraph 5(A)

                                 Means of Exercising the Power

       {¶17} Lisa and the Estate argued that Hugh was authorized to exercise the power of

appointment through a means other than his Last Will and Testament by pointing to the language

that this Court has italicized in paragraph 5(A): the term “may” in the first sentence and the last

quoted sentence that refers to exercising the power of appointment in the form of a trust. They

argued that, because the term “may” is discretionary, the Trust permitted, but did not require,

that the power of appointment be exercised through Hugh’s Last Will and Testament. They also

pointed to the sentence about exercising the power in the form of a trust, asserting that the
                                                7


siblings were also authorized to exercise the power of appointment through an inter vivos trust as

an alternate means to exercising the power through his Last Will and Testament.

                                  “Last Will and Testament”

       {¶18} Next, because the Trust does not explicitly require that the power of appointment

be exercised through a legally valid Last Will and Testament, the parties dispute whether Hugh’s

invalid 2007 codicil to his 2003 will was an effective means of appointing Lisa to receive his

Trust share. In the trial court and again on appeal, Lisa and the Estate intertwined their legal

arguments about whether the language of paragraph 5(A) was ambiguous with extrinsic evidence

about the underlying intentions of Hugh and the Siblings.

       {¶19} In interpreting the relevant terms of the Trust, absent determining the existence of

an ambiguity, the trial court had no authority to resort to extrinsic evidence to interpret an

operative term of the Trust. Robinson v. Beck, 9th Dist. Summit No. 21094, 2003-Ohio-1286, ¶

10; Frederick v. Cocca Dev., Ltd., 7th Dist. Mahoning No. 05 MA 107, 2006-Ohio-7273, ¶ 44.

When the language of a written document is clear and unambiguous, the determination of the

intent of the parties is made as a matter of law and is necessarily confined to the plain language

of the written document, in this case, the relevant portions of the Trust. Id. Extrinsic evidence

cannot be used to create an ambiguity in the meaning of a term. Frederick at ¶ 41.

       {¶20} In other words, the trial court was first required to determine, as a matter of law,

whether there was an ambiguity in any of the relevant terms of the Trust and that determination

was confined to examining the language of the Trust document. Only if the court found that a

relevant Trust term was ambiguous did it have authority to consider extrinsic evidence and make

factual findings about what the parties intended the terms of the Trust to mean. See Maverick Oil

& Gas, Inc. v. Bd. of Edn. of Barberton City School Dist., 171 Ohio App.3d 605, 2007-Ohio-
                                                  8


1682 (9th Dist); See also Ohio Historical Soc. v. Gen. Maintenance & Eng. Co., 65 Ohio App.3d

139, 146 (10th Dist.1989), citing Alexander v. Buckeye Pipe Line Co., 53 Ohio St.2d 241, 246

(1978) and Amstutz v. Prudential Ins. Co., 136 Ohio St. 404, 408 (1940).

       {¶21} In this case, the record suggests that the trial court may have improperly

considered extrinsic factual evidence about the parties’ intentions in order to interpret the trust

document itself without first making the requisite legal finding that one or more of the relevant

Trust terms was ambiguous. In this regard, we note that the court made no explicit finding that

there was ambiguity in any of the operative language of paragraph 5(A).

       {¶22} The trial court’s failure to make an explicit finding of ambiguity is particularly

troubling in this case because Lisa and the Estate raised two ambiguity arguments based on

different terms in paragraph 5(A) of the Trust, either or both of which may have persuaded the

trial court to find an ambiguity. Conversely, in light of the record and the trial court’s entry, it is

possible that the court employed extrinsic evidence to interpret the trust document itself,

notwithstanding its view that none of the language in the trust was ambiguous. It is also possible

that the trial court improperly considered the extrinsic evidence without making any implicit

finding of ambiguity.

       {¶23} Given the lack of an ambiguity finding by the trial court, and our inability to

discern the manner in which the trial court actually interpreted the Trust, this Court cannot

“review” the trial court’s decision on this issue. Even though this Court conducts a de novo

review of a trial court’s legal determination about the ambiguity of a trust term, here we have no

determination before us to review. “A reviewing court, even though it must conduct its own [de

novo] examination of the record, has a different focus than the trial court.”              Murphy v.

Reynoldsburg, 65 Ohio St.3d 356, 360 (1992).           If this Court were to make the ambiguity
                                                   9


determination for the first time on appeal, we would not be sitting as a reviewing court but

would, in effect, assume the role of the trial court. Id.

          {¶24} It is unclear whether the trial court made a legal conclusion about the ambiguity

of the relevant terms of paragraph 5(A) of the Trust and this Court cannot make that

determination for the first time on appeal. The first assignment of error is sustained for that

reason.

                                   ASSIGNMENT OF ERROR II

          THE TRIAL COURT ERRED IN GRANTING JUDGMENT IN PLAINTIFFS’
          FAVOR ON THE CLAIM FOR PAYMENT OF ESTATE DEBTS AND
          EXPENSES.

          {¶25} The second assignment of error is that the trial court erred in concluding that the

Estate was entitled to recover $164,513.51 plus interest from the Trust because it submitted

Estate debts to the Trustee in August 2008, and presented documentation that, as of December

2008, the Estate’s account lacked available assets to pay that portion of the Estate debts. Again,

this Court is asked to review a trial court decision without the requisite legal conclusions or

factual findings to enable us to do so.

          {¶26} The Estate sought recovery of its debts pursuant to paragraph 3(E) of the Trust,

which provides, in relevant part:

          Upon the Grantor’s death, there shall be distributed to the Grantor’s estate (to the
          extent the Trustee determines that non-trust assets are not available for such
          purpose) from his or her Trust Share such an amount as the Grantor’s executor or
          administrator certifies is not greater than [the amount of death taxes, and normal
          and usual costs of administering the estate and debts of the grantor or his estate].

          {¶27} The parties do not dispute that the language of paragraph 3(E) provides for the

payment of estate expenses from a deceased sibling’s share of the Trust, nor do they dispute that
                                                 10


the Estate submitted debts that could qualify for payment under this provision “to the extent the

Trustee determines that non-trust assets are not available for such purpose.”

       {¶28} Although the parties disputed the meaning of the term “available” as well as the

scope of the Trustee’s obligation to “determine” whether non-trust assets were “available” to

cover the debts, the trial court failed to explain the meaning of either term. Specifically disputed

by the parties was whether “available” non-trust assets referred to those that were in the Estate

account at a given point in time or whether the term referred to the total assets of the Estate, as

reflected in its inventory. The parties’ disagreement about the obligation of the Trustee to make

that determination is not entirely clear from the record.

       {¶29} The trial court’s declaration about the rights and obligations of the parties under

paragraph 3(E) simply stated that the Trust was obligated to pay the debts of the Estate that were

submitted to the Trustee in August 2008, to the extent that the Estate lacked assets “at that same

time” to pay the debts. However, this Court cannot determine from the trial court’s judgment

whether it found the Trust provisions plain and unambiguous and thus construed those terms as a

matter of law or based on the extrinsic evidence presented by the parties. For example, although

the parties offered various arguments concerning disputed terms, the court did not explicitly

define the meaning of term “available” in paragraph 3(E) nor did it explain the scope of the

Trustee’s obligation to make the determination of whether non-trust assets were available to pay

the Estate debts.

       {¶30} Again, this Court would exceed its role as a reviewing court if it were to interpret

this provision for the first time on appeal. Accordingly, the second assignment of error is

sustained.
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                                ASSIGNMENT OF ERROR III

       THE TRIAL COURT ERRED IN ENTERING A MONEY JUDGMENT
       AGAINST THE INDIVIDUAL DEFENDANTS – PARTIES WHO HAD NO
       CUSTODY OR CONTROL OVER HUGH HEARTY’S SHARE.

       {¶31} Because this Court has sustained the first and second assignments of error, and

remands the matter to the trial court for a new determination of the claims against the Trust, the

trial court must also reconsider whether to enter a monetary judgment against the defendants.

Consequently, this Court need not reach the merits of the third assignment of error.

                                                III.

       {¶32} The first and second assignments of error of the Trustee and the Siblings are

sustained and this Court does not address the merits of the third assignment of error. The

judgment of the Summit County Court of Common Pleas is reversed and the cause remanded for

proceedings consistent with this opinion.

                                                                             Judgment reversed and
                                                                                  cause remanded.




       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
                                                12


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 Appellees.




                                                     DONNA J. CARR
                                                     FOR THE COURT



BELFANCE, P. J.
MOORE, J.
CONCUR.


APPEARANCES:

ROBERT L. TUCKER, JOHN R. CHLYSTA, and FRANK G. MAZGAJ, Attorneys at Law, for
Appellants.

MICHAEL J. ELLIOTT and LAWRENCE J. SCANLON, Attorneys at Law, for Appellees.

THOMAS F. HASKINS, JR., Attorney at Law, for Appellee.
