[Cite as Am. Cancer Society E. Central Div. v. Huntington Natl. Bank, 2012-Ohio-5448.]


                                       COURT OF APPEALS
                                   MUSKINGUM COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT



AMERICAN CANCER SOCIETY          :                             JUDGES:
EAST CENTRAL DIVISION, ET AL.    :                             Hon. Patricia A. Delaney, P.J.
                                 :                             Hon. Sheila G. Farmer, J.
     Plaintiffs-Appellants       :                             Hon. John W. Wise, J.
                                 :
-vs-                             :
                                 :
HUNTINGTON NATIONAL BANK, ET AL. :                             Case No. CT2012-0033
                                 :
     Defendants-Appellees        :                             OPINION




CHARACTER OF PROCEEDING:                                       Appeal from the Court of Common
                                                               Pleas, Probate Division, Case No.
                                                               20128001A


JUDGMENT:                                                      Reversed and Remanded




DATE OF JUDGMENT:                                              November 19, 2012




APPEARANCES:

For Plaintiffs-Appellants                                      For Defendant-Appellees

STEVEN J. SHROCK                                               SCOTT D. EICHELBERGER
138 East Jackson Street                                        RYAN H. LINN
Millersburg, OH 44654                                          50 North Fourth Street
                                                               P.O. Box 1030
                                                               Zanesville, OH 43702-1030
Muskingum County, Case No. CT2012-0033                                                      2

Farmer, J.

       {¶1}   Prior to her death, Lillian W. Keckley created a trust on October 22, 1973.

The trust was created to benefit Mrs. Keckley's granddaughter, Paula Long, and her

issue, as well as Mrs. Keckley's great-granddaughter, Theresa Jones. A major portion

of the trust was to be distributed when Paula turned sixty years of age on February 26,

2011. Thereafter, the trust was to be divided into four equal parts and distributed to

Paula if she was still living, and if not, to her children, and to appellants, the Zanesville,

Ohio Cancer Fund, the Zanesville, Ohio Heart Fund, and the Zanesville, Ohio Fund for

Mentally Retarded Children or their successors.          Trustee of the trust is appellee,

Huntington National Bank.

       {¶2}   On August 14, 1998, appellee's predecessor filed a declaratory judgment

action to construe the trust.     First Financial Services Group, N.A. v. Long, et al.,

Muskingum Probate No. 988004A. By agreed entry filed June 7, 1999, the parties to

the action, the same parties sub judice, agreed appellee had sole discretion to make

distributions until the date of the final termination of the trust, and the standards for the

making of distributions from the trust were in appellee's sole discretion.

       {¶3}   Shortly after Paula's 60th birthday on February 26, 2011, appellee, as

successor trustee, distributed $327,171.74 to Paula which represented one-fourth of the

trust funds. Appellee did not distribute any further funds.

       {¶4}   On February 3, 2012, appellants, American Cancer Society East Central

Division, Inc., American Heart Association, Inc., and Muskingum County Board of

Mental Retardation and Developmental Disabilities, as successor beneficiaries, filed a

complaint against appellee to terminate the trust and distribute the remaining funds as
Muskingum County, Case No. CT2012-0033                                                    3


directed in the trust. Appellants also sued appellee for breach of fiduciary duty and

conversion and sought damages for appellee's refusal to terminate the trust. Appellants

further challenged certain distributions made by appellee prior to the termination and

requested an accounting.

       {¶5}   On March 5, 2012, appellee filed a motion to dismiss for failure to state a

claim upon which relief could be granted. Appellee argued the doctrine of res judicata

based upon the agreed entry of the 1998 declaratory judgment action, and based upon

the language of the trust, it had the discretion to continue the trust as long as it wished.

By judgment entry filed May 1, 2012, the trial court granted the motion, finding the

parties were bound by the agreed entry of the 1998 declaratory judgment action.

       {¶6}   Appellants filed an appeal and this matter is now before this court for

consideration. Assignments of error are as follows:

                                             I

       {¶7}   "THE TRIAL COURT ERRED BY HOLDING THAT PLAINTIFFS' CLAIMS

WERE DECIDED WITHIN A PRIOR LAWSUIT AND HENCE BARRED BY THE

DOCTRINE OF RES JUDICATA."

                                             II

       {¶8}   "THE TRIAL COURT ERRED BY HOLDING THAT THE TRUST GRANTS

ITS TRUSTEE DISCRETION TO DETERMINE WHEN THE TRUST TERMINATES."

                                             I

       {¶9}   Appellants claim the trial court erred in granting appellee's motion to

dismiss pursuant to Civ.R. 12(B) as their claims were not barred by the doctrine of res

judicata. We agree.
Muskingum County, Case No. CT2012-0033                                                  4

      {¶10} Our standard of review on a Civ.R. 12(B)(6) motion to dismiss is de novo.

Greely v. Miami Valley Maintenance Contrs. Inc., 49 Ohio St.3d 228 (1990). A motion

to dismiss for failure to state a claim upon which relief can be granted is procedural and

tests the sufficiency of the complaint. State ex rel. Hanson v. Guernsey County Board

of Commissioners, 65 Ohio St.3d 545, 1992-Ohio-73. Under a de novo analysis, we

must accept all factual allegations of the complaint as true and all reasonable inferences

must be drawn in favor of the nonmoving party. Byrd. v. Faber, 57 Ohio St.3d 56

(1991).

      {¶11} Res judicata is defined as "[a] valid, final judgment rendered upon the

merits bars all subsequent actions based upon any claim arising out of the transaction

or occurrence that was the subject matter of the previous action." Grava v. Parkman

Twp., 73 Ohio St.3d 379, 1995-Ohio-331, syllabus.           However, as explained by the

Supreme Court of Ohio in State ex rel. Coles v. Granville, 116 Ohio St.3d 231, 2007-

Ohio-6057, ¶ 37, the doctrine is limited in actions involving declaratory judgments:



             Unlike   other judgments,      however,   "a     declaratory judgment

      determines only what it actually decides and does not preclude other

      claims that might have been advanced." Shemo, 95 Ohio St.3d at 69, 765

      N.E.2d 345; 1 Restatement of the Law 2d, Judgments (1982) 337, Section

      33, Comment c. Consequently, "[f]or a previous declaratory judgment, res

      judicata precludes only claims that were actually decided." (Emphasis

      sic.) State ex rel. Trafalgar Corp. v. Miami Cty. Bd. of Commrs., 104 Ohio

      St.3d 350, 2004-Ohio-6406, 819 N.E.2d 1040, ¶ 22.
Muskingum County, Case No. CT2012-0033                                                  5




      {¶12} In its judgment entry filed May 1, 2012, the trial court determined the

agreed entry of the 1998 declaratory judgment action bound the parties and was

determinative of the issues sub judice:



             (1) This Court finds that all of the parties in the matter at bar were

      parties to First Financial Services Group, N.A. v. Paula Jean Graham

      Long, et al., Case No. 988004A. All of the parties were represented by

      counsel when they entered into an agreement with this Court whereby all

      parties agreed that the predecessor to Defendant was the Trustee and

      that the Trustee had the sole discretion as to the making of distributions

      until the date of the final termination of the Trust and that the standards for

      making of distributions from the Trust were within the sole discretion of the

      Trustee.

             (2) This Court finds that the Agreed Entry entered into by and

      between the parties in First Financial Services Group, N.A. v. Paula Jean

      Graham Long, et al., Case No. 988004A, is binding upon the parties to

      this action and is conclusive of the issues before this Court on Plaintiff's

      complaint. By agreement, Defendant has the sole discretion as Trustee to

      determine the final termination date of the Trust, to determine any and all

      distributions from the Trust, and to carry out the Trust principles. This

      Court finds that the Trust which is the subject of this litigation places the

      full power, authority and discretion into Defendant as Trustee in carrying
Muskingum County, Case No. CT2012-0033                                                  6


       out the trust provisions, including all interpretation regarding the

       termination of the Trust. A review of the trust document shows Lillian W.

       Keckley intended to provide for the welfare of all of her family members

       prior to the beneficiaries receiving distributions pursuant to the Trust.

       Therefore, based upon the foregoing, the claims of the plaintiffs' in the

       case herein are barred.



       {¶13} The complaint filed in this case sought the termination of the trust as

Paula had turned sixty years old on February 26, 2011. The complaint also claimed

appellee had breached its fiduciary duty by not terminating the trust and distributing the

assets, thereby converting appellants' funds intentionally and without good faith.

Appellants further challenged certain distributions made by appellee prior to the

termination and requested an accounting.

       {¶14} The 1998 declaratory judgment action initiated by the predecessor trustee

requested the trial court to construe the trust as follows:



              1)     Does the Plaintiff have full discretion as to the making of

              distributions from this trust, prior to February 26, 2011?

              2)     Are there any standards providing for required distributions

              by the Trustee?

              3)     If the answer to No. 2 is yes, what are those standards and

              to whom are those distributions to be made?
Muskingum County, Case No. CT2012-0033                                             7


             4)     Is the trustee within its rights to refuse the $547,000

             distribution requested by the Defendant Theresa Jones Addison?

             5)     Has the American Cancer Society succeeded to the interest

             in the trust of the Zanesville, Ohio Cancer Society?

             6)     Has the American Heart Association succeeded to the

             interest in the trust of the Zanesville, Ohio Heart Fund?

             7)     Has the Muskingum County Board of Mental Retardation

             and Development Disabilities succeeded to the interest in the trust

             of the Zanesville, Ohio Fund for Mentally Retarded Children?

             8)     That the court find that the distribution of funds to the

             Defendant, Allie L. Jones, for her education, is within the meaning

             of the trust and that such distribution be approved.

             9)     For such other and further relief as is just and equitable in the

             circumstances.



      {¶15} The 1998 declaratory judgment action was settled by an agreed entry filed

on June 7, 1999 which stated the following:



             IT IS HEREBY AGREED and the Court finds that:

             1)     The Trustee has the sole discretion as to the making of

             distributions until the date of final termination of the Trust;

             2)     That the standards for the making of distributions from the

             Trust are within the sole discretion of the Trustee;
Muskingum County, Case No. CT2012-0033                                              8


           3)      That the Trustee did not abuse its discretion in refusing the

           $547,000 distribution requested by the Defendant, Theresa Jones

           Addison;

           4)      That all parties herein had notice, actual or constructive, of

           the existence of the Trust, and the Trustee has no obligation to give

           notice to any other person;

           5)      That the American Cancer Society, Ohio Division, Inc. with

           its main administrative offices at 5555 Franz Road, Dublin, Ohio

           43017, and a branch office in Zanesville, Ohio has succeeded to

           the interest in the Trust of the Zanesville Ohio Cancer Society;

           6)      That the American Heart Association, Ohio Valley Affiliate,

           Inc. with its main administrative offices at 5455 North High Street,

           Columbus, Ohio 43214 and a branch office in Zanesville, Ohio has

           succeeded to the interest in the Trust of the Zanesville Ohio Heart

           Fund;

           7)      That the Muskingum County Board of Mental Retardation

           and Development Disabilities has succeeded to the interest in the

           Trust of the Zanesville Ohio Fund for Mentally Retarded, or in the

           alternative is deemed a residual beneficiary of the Trust, in place of

           The Zanesville, Ohio Fund for Retarded Children;

           8)      That all distributions of funds made by the Trustee prior to

           the date of this Entry were not an abuse of the Trustee's discretion

           and are approved;
Muskingum County, Case No. CT2012-0033                                                  9


             9)     The residuary beneficiaries and the Trustee have agreed

             that the Trustee shall pay the Defendant, Theresa Jones Addison,

             the Sum of $5,000.00 from the Trust, in settlement of her claim, and

             the Court hereby approves such settlement;

             10)    That Theresa Jones Addison shall remain eligible to apply

             for distributions from the Trust, for permitted purposes;



      {¶16} Item IX of Ms. Keckley's trust provided for the following:



             (a)    After my death the trust shall be operated as a single fund

             until the sixtieth (60th) anniversary of Paula's birth. On that date

             twenty-five per cent (25%) of the principal or One Hundred

             Thousand Dollars ($100,000.00), whichever is larger, shall be

             distributed to Paula if she is living; if she is not living, it shall be

             distributed to her children. The remainder shall be divided equally

             between the following:

             (1)    The Zanesville, Ohio Cancer Fund

             (2)    The Zanesville, Ohio Heart Fund

             (3)    The Zanesville, Ohio Fund for Mentally Retarded Children



      {¶17} It is conceded the 60th anniversary of Paula's birth had not occurred at the

time of the filing of the 1998 declaratory judgment action or the 1999 agreed entry as
Muskingum County, Case No. CT2012-0033                                               10


Paula turned sixty on February 26, 2011.         On March 10, 2011, appellee made a

distribution to Paula in the amount of $327,171.74.

      {¶18} We conclude the claims in the complaint sub judice are not barred under

the theory of res judicata as the termination date of the trust was not litigated in the

1998 declaratory judgment action nor was it ripe for review during the pendency of the

case and its agreed entry.

      {¶19} Upon review, we find the trial court erred in granting the Civ.R. 12(B)(6)

motion to dismiss.

      {¶20} Assignment of Error I is granted.

                                            II

      {¶21} Appellant claims the trial court erred in finding the date of Paula's 60th

birthday was not the termination date of the trust.     We conclude this finding was

premature as the matter has not been fully litigated.

      {¶22} Assignment of Error II is granted.
Muskingum County, Case No. CT2012-0033                                       11


      {¶23} The judgment of the Court of Common Pleas of Muskingum County, Ohio,

Probate Division is hereby reversed.

By Farmer, J.

Delaney, P.J. and

Wise, J. concur.




                                       _______________________________



                                       _______________________________



                                       _______________________________

                                                    JUDGES

SGF/sg 102
[Cite as Am. Cancer Society E. Central Div. v. Huntington Natl. Bank, 2012-Ohio-5448.]


                IN THE COURT OF APPEALS FOR MUSKINGUM COUNTY, OHIO

                                   FIFTH APPELLATE DISTRICT



AMERICAN CANCER SOCIETY          :
EAST CENTRAL DIVISION, ET AL.    :
                                 :
     Plaintiffs-Appellants       :
                                 :
-vs-                             :                                 JUDGMENT ENTRY
                                 :
HUNTINGTON NATIONAL BANK, ET AL. :
                                 :
     Defendants-Appellees        :                                 CASE NO. CT2012-0033




        For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Muskingum County, Ohio, Probate Division

is reversed, and the matter is remanded to said court for further proceedings consistent

with this opinion. Costs to appellee Huntington National Bank.




                                                      _______________________________



                                                      _______________________________



                                                      _______________________________

                                                                        JUDGES
